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CINCINNATI 


Southern  Railway. 


CIRCULAR  OF  THE  TRUSTEES 


TOOETHES  WITH   THB 


Laws  Authorizing  the  Construction 

or  THB 

CINCINNATI  SOUTHERN  RAILWAY. 

AND  THB 

DECISIONS 

or  THB 

jSuPERjoR     Court    of    Cincinnati 

AMD   THE 

SUPREME  COURT  OF  OHIO 

THEREON. 


CINCINNATI : 

WRIGHTSON   &   CO.,    BOOK  AND  JOB   PRINTERS. 
1873. 


BOARD  OF  TRUSTEES. 


MILES  GREENWOOD,   President. 

R.  M.  BISHOP,  E.  A.  FERGUSON. 

WILLIAM  HOOPER,  PHILIP  HEIDELBACH. 


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MAP    OF 
Railroads  C  <>  ii  v e  r  gr i  ntp  at 

AND 

CHATXANOOC3-A, 

AND 

Ontllues  of  Snryeys  of  tlie  Ciuciuuati  Sonttieru  Railway. 


RAILROADS  IN  OPKRATIOX, 
PROJKCTED. 


r(acW|/r,7fe)  CIN.  SOUTHFHN  RV.  SIRVEYS,  «_ 

M/£:2l'^8<<Q*''T  i  STILLMAN.  CiN.O         From  which  a  rou.^  will  be  sel^^JT 


1 


INDEX. 


FA8I. 

Trustees'  Circular,  -        -        -        -•-        -        -5 

Ferguson  Act,  1869,     - 9 

Supplementary  Act,  1870,       ------  15 

Supplementary  Act,  1873,   ------  16 

Proceedings  in  Superior  Court  of  Cincinnati,             -         -  19 

Decision  in  Superior  Court  of  Cincinnati,     -         -         -  36 

Decision  in  Supreme  Court  of  Ohio,  1871,       -         -         -  46 

Decision  in  Supreme  Court  of  Ohio,  1872,            -        -  70 

Tennessee  Act,  1870, 81 

Supplementary  Act,  1870, 91 

Kentucky  Act,  1872, 92 

Supplementary  Act,  1872,             .....  106 

Supplementary  Act,  1873, 107 

United  States  Act  Authorizing   Construction  of   Bridges 

Across  Ohio  River, 108 


O  XJElOTJlLiJi^T^. 


It  is  more  than  thirty  years  since  the  question  of  connecting 
Cincinnati  by  a  railroad,  through  the  States  of  Kentucky  and  Ten- 
nessee, with  the  States  of  the  South  lying  beyond  .the  Cumber- 
land mountains,  began  to  be  discussed.  The  importance  of  such 
means  of  communication  has  always  been  acknowledged,  but  the 
difficulties  and  cost  of  the  route  have  prevented  private  capital 
hitherto  from  succeeding  in  the  enterprise,  although  several  at- 
tempts have  been  made.  During  the  late  civil  war,  so  necessary 
to  its  operation  appeared  a  direct  transit  through  this  part  of  the 
country  to  the  General  Government,  that  the  War  Department 
ordered  a  survey  of  the  route,  and  but  for  the  sudden  termination 
of  the  war,  a  railway  would  have  been  built  by  tbe  United  States. 

Pressed  by  an  increasing  demand  for  its  manufactures  from 
its  natural  market,  the  South,  and  requiring  in  return  the  pro- 
ducts of  that  fertile  region,  the  city  of  Cincinnati  has  under- 
taken to  accomplish,  in  the  only  available  way  at  command,  what 
has  become  an  urgent  need  to  its  citizens. 

The  General  Assembly  of  the  State  of  Ohio,  on  the  4th  of  May, 
1869,  passed  an  act  authorizing  the  construction  of  a  railway  by 
the  city,  through  a  Board  of  Trustees,  between  two  termini,  one 
of  which  should  be  Cincinnati,  the  other  to  be  named  by  the 
City  Council,  which  designated  Chattanooga.  Said  Trustees  are 
empowered  to  borrow  a  fund  for  the  purpose,  and  to  issue  bonds 
therefor,  in  the  name  of  the  city,  not  to  exceed  ten  millions  of 
dollars,  with  ample  powers  as  to  the  time  and  place  of  payment. 

Said  bonds  were  to  be  secured  by  a  mortgage  on  the  line  of  rail- 
way and  its  net  income,  and  by  a  pledge  of  the  faith  ot  the  city, 
and  a  tax  which  it  is  made  the  duty  of  the  City  Council  to  letn/ 
annually,  sufficient  with  its  net  income  to  pay  the  interest  and 
provide  a  sinking  fund  for  the  final  redemption  of  its  bonds. 

A  provision  of  the  act  above  named,  inquired  that  the  question 
of  constructing  the  railway,  and  the  issue  of  bonds  for  the  pur- 
pose, should  be  submitted  to  the  qualified  electors  of  said  city, 
and  that  a  majority  should  decide. 


Ti  CINCINNATI    BOOTUVRN  RAILWAY. 

In  conformity,  a  special  election  was  bold  on  the  26th  of  June, 
1869,  whereat  were  cast  15,435  ballots  in  favor  of  providing  said 
line  of  railway  on  the  part  of  the  city,  and  1,500  ballots  against 
providing  the  same. 

Subsequently,  some  doubts  having  arisin  as  to  the  constitu- 
tionality of  the  act  of  the  General  Assembly,  conferring  on  the 
city  the  power  to  construct  a  railway  outside  of  the  State  of  Ohio, 
the  question  was  brought  before  the  Superior  Court  of  Cincinnati. 

The  "conclusion"  of  the  opinion  of  the  Court  of  three 
judges,  is  in  these  words:  "Upon  the  whole  case,  we  hold  that 
the  act  passed  May  4,  1869,  and  the  act  of  March  25,  1870,  sup- 
plementary thereto,  both  of  which  are  recited  in  the  petition,  are 
constitutional  and  valid,  in  which  opinion  we  are  unanimous." 

From  this  decision  an  appeal  was  taken  to  the  Supreme  Court 
of  Ohio.  That  Court  delivered  an  elaborate  opinion,  and  "af- 
firmed the  judgment  of  the  Superior  Court." 

The  General  Assembly  of  the  State  of  Tennessee,  passed  an 
act  January  20,  1870,  entitled  "  An  Act  to  authorize  the  exten- 
sion and  construction  of  the  Cincinnati  Southern  Railway,  with- 
in the  State  of  Tennessee,"  of  which  the  following  is  an  extract 
from  the  seventh  section  : 

"  That  the  respective  holders  of  all  iuch  bonds,  (viz :  the 
bonds  authorized  by  the  Ohio  act^  are  hereby  declared  to  be 
entitled  to  hold  by  way  of  mortgage,  without  any  conveyance, 
the  said  line  of  railway  and  its  appendages,  and  the  net 
income  thereof,  and  all  the  estate,  right,  title  and  interest  of 
the  said  city  of  Cincinnati,  and  of  the  said  Board  of  Trus- 
tees therein,  until  the  respective  sums  mentioned  in  the  said 
bonds  and  the  interest  thereon  shall  be  fully  paid,  without  any 
preference  one  above  another,  by  reason  of  priority  of  date  of 
any  such  bonds,  or  of  the  time  when  such  holder  became  the 
owner  of  the  same,  or  otherwise  howsoever.  The  mortgage 
lien  hereby  given  is  to  vest  as  soon  as  rights  of  way  or  lands 
whereon  are  to  be  placed  the  works  and  conveniences  used  in 
constructing,  maintaining  or  operating  said  railway  are 
acquired,  or  taken  by  virtue  of  the  powers  of  said  Trtu- 
tees." 


CINCINNATI    SOUTHERN   RAILWAY.  VU 

The  General  Assembly  of  the  State  of  Kentucky  passed  an 
act  February  13,  1872,  entitled  "  xin  Act  to  authorize  the  Trus- 
tees of  the  Cincinnati  Southern  Railway,  to  acquire  the  right  of 
way  and  to  extend  a  line  of  railway  through  certain  counties  in 
this  Commonwealth,"  and  enacted  the  same  provision  above  quoted 
from  the  act  of  the  Tennessee  Assembly.  By  a  supplementary 
act  passed  April  18,  1873,  the  same  provision  was  also  enacted 
by  the  General  Assembly  of  Ohio.  These  enactments  give  to 
the  bondholders  a  statutory  mortgage  on  the  entire  road  and  its 
appendages,  without  the  intervention  of  Trustees. 

The  country  which  this  railway  is  intended  to  traverse,  is  rich 
in  agricultural  products — the  blue  grass  region  of  Kentucky  is 
widely  celebrated.  It  has  many  small  towns  and  centers  of  popu- 
lation, which  only  need  the  facilities  of  the  road  to  be  largely 
increased. 

The  Cumberland  hills  are  full  of  immense  deposits  of  coal  and 
iron.  In  Tennessee  there  are  already  several  furnaces  dependent 
now  upon  uncertain  stages  of  water  communication  which  will  be 
vastly  increased  by  railway  means  of  transport.  And  it  is  note- 
worthy that  every  mineral  road  in  the  United  States,  is  a  paying 
road.  But  the  chief  purpose  of  this  enterprise  is  to  connect  the 
system  of  railways  north  of  the  Ohio,  with  the  system  in  opera- 
tion south  of  Tennessee,  to  which  hitherto  the  mountains 
and  a  sparsely  settled  country  have  been  barriers.  In  Ohio  and 
Indiana  on  the  north  and  leading  directly  to  Cincinnati  are  6,000 
miles  of  railway.  South  of  Tennessee  and  converging  there, 
are  4,000  miles — and  this  railway  will  be  as  the  neck  between 
them.  It  is  estimated  that  the  extent  of  country  which  will  there- 
by become  a  market  for  our  manufactures,  and  from  which  we 
shall  draw  its  special  products,  embraces  an  area  of  about  200,000 
square  miles,  and  in  the  whole  of  it  there  is  no  large  town,  and. 
to  it  there  is  no  eastern  or  northern  city  so  accessible  as  Cincin- 
nati. The  success  of  the  enterprise  as  a  paying  property  seems  to 
be  assured  from  the  start,  but  its  advantage  to  Cincinnati  is  be- 
yond the  whole  investment  proposed,  as  a  means  of  business  in- 
tercourse. 

Below  we  submit  some  facts  regarding  the  position  of  the  city 
of  Cincinnati  in  connection  with  the  loan  proposed  to  be  issued  : 

The  real  property  belonging  to  the  city  acquired  from  time  to 


Tiii  CIKCINMATI   SOUTHERN   RAILWAY 

time,  was  assessed,  at  the  last  valaation  in  1871,  at  $15,237,- 
194.00.  The  present  value  of  the  same,  is  estimated  by  the  city 
auditor  at  $19,000,000.00. 

The  property  assessed  for  taxation  for  the  year  ending  June 
30,  1872,  was  valued  at  $175,084,296,  of  which  $119,621,880  was 
real  estate,  and  $55,462,410  was  personalty.  The  present  city 
tax  levy  is  15.10  mills  on  each  $100,  which  produced  for  the  cur- 
rent year  $2,673,773,  the  total  amount  levied  for  municipal  pur- 
poses. 

The  present  bonded  indebtedness  of  the  city  is  $6,101,500,  from 
which  should  be  deducted  balance  of  cash  in  Treasury  $566,703. 
Of  this  debt  the  sum  of  $1,0^5,000  has  been  expended  for  water 
works  which  yield  a  gross  income  of  $610,960  annually.  A 
revenue  of  $79,428  per  annum,  is  derived  from  public  wharves, 
markets,  licenses  and  fines.  The  rest  of  the  bonded  debt  has 
been  expended  in  hospitals,  school  houses,  infirmaries,  etc. 

The  population  of  the  city  by  the  census  of  1870,  was  218,900, 
since  which  time  there  has  been  an  increase,  and  if  the  cities  of 
Covington  and  Newport  in  Kentucky  on  the  opposite  bank  of  the 
Ohio  River,  which  are  practically  a  part  of  Cincinnati,  be  taken 
into  account,  there  is  within  a  radius  of  three  miles,  a  population 
of  275,000. 

The  value  of  the  imports,  exports  and  manufactures  of  Cin- 
cinnati for  the  three  years  last  past  according  to  tables  published 
by  the  Board  of  Trade,  were  as  follows: 

Importj.  JBzports.  Manufacture!. 

1870 $312,978,665  $193,517,690  127,459,021 

1871 $283,796,219  $179,848,427  135,968,365 

1872 $317,646,608  $200,607,640  143,486,675 

The  red  lines  in  the  accompanying  map  indicate  surveys  from 
which  a  line  of  route  will  be  selected. 

MILES  GREENWOOD, 
WILLIAM  HOOPER, 
R.  M.  BISHOP 
E.  A.  FERGUSON, 
PHILIP  HEIDELBACH, 
Truitees. 
Cincinnati,  Jane  1,  1873. 


THE!  OHTIO   ^OTS 
Authorizing  Construction  of  the  Road* 


THE    FERGUSON    ACT. 


^^A  CTi'elatinff  to  cities  of  the  first  class  having  a  poprita- 
L  tioji  exceeding  one  hundred  and  fi/ty  thousand  inhabitants^ 

Passed  May  4,  1869. 


Section  1.  Be  it  enacted  hy  the  General  Assembly 
of  the  State  of  Ohio,  That  whenever  in  any  city  of  the 
first  class  having  a  population  exceeding  one  hundred  and 
fifty  thousand  inhabitants,  the  city  council  thereof  shall  . 
by  a  resolution  passed  by  a  majority  of  the  members 
elected  thereto,  declare  it  to  be  essential  to  the  interests 
of  such  city  that  a  line  of  railway,  to  be  named  in  said 
resolution,  should  bo  provided  between  termini  designated 
therein,  one  of  which  shall  be  such  city,  it  shall  be  law- 
ful for  a  board  of  trustees,  appointed  as  herein  provided, 
and  they  are  hereby  authorized  to  borrow,  as  a  fund  for 
that  purpose,  not  to  exceed  the  sum  of  ten  millions  of 
dollars,  and  to  issue  bonds  therefor  in  the  name  of  said 
city,  under  the  corporate  seal  thereof,  bearing  interest  at 
a  rate  not  to  exceed  seven  and  three-tenths  per  centum 
per  annum,  payable  at  such  times  and  places,  and  in  such 
sums,  as  shall  be  deemed  best  by  said  board.     Said  bonds 
shall  be  signed  by  the  president  of  said  board,  and  attested 


10  CIRCIHKATI   BOUTBRRM   RAILWAY. 

by  the  city  auditor,  who  shall  keep  a  register  of  the  same, 
and  shall  be  secured  by  a  mortgage  on  the  line  of  railway, 
and  its  net  income,  and  by  the  pledge  of  the  faith  of  the 
city,  and  a  tax,  which  it  shaU  be  the  duty  of  the  council 
thereof  annually  to  levy,  sufficient,  with  said  net  income, 
to  pay  the  interest  and  provide  a  sinking  fund  for  the 
final  redemption  of  said  bonds ;  provided  that  no  money 
shall  be  borrowed  or  bonds  issued  until  after  the  question 
of  providing  the  line  of  railway  specified  in  the  resolu- 
tion shall  be  submitted  to  a  vote  of  the  qualified  electors 
of  said  city,  at  a  specified  election  to  be  ordered  by  the 
city  council  thereof,  of  which  not  less  than  twenty  days 
notice  shall  be  given  in  the  daily  papers  of  the  city ; 
and  further  provided,  that  a  majority  of  said  electors, 
voting  at  such  election,  shall  decide  in  favor  of  said  line 
of  railway.  The  returns  of  said  election  shall  be  made 
to  the  city  clerk,  and  be  by  him  laid  before  the  city 
council,  who  shall  declare  the  result  by  a  resolution.  The 
bonds  issued  under  the  authority  of  this  section  shall  not 
be  disposed  of  for  less  than  their  par  value. 

Sec.  2.  If  a  majority  of  the  votes  cast  at  said  election 
shall  be  in  favor  of  providing  the  line  of  railway,  as  speci- 
fied in  the  first  section,  it  shall  be  the  duty  of  the  solici- 
tor forthwith  to  file  a  petition  in  the  Superior  Court  of 
said  city,  or  if  there  be  no  Superior  Court,  then  in  the 
Court  of  Common  Pleas  of  the  county  in  which  said  city 
is  situate,  praying  that  the  judges  thereof  will  appoint 
five  trustees,  to  be  called  the  trustees  of railway, 


CINCINNATI   SOUTHERN   RAILWAY.  11 

(the  blank  to  be  filled  with  the  name  given  to  the  rail- 
way in  the  resolution),  and  it  shall  be  the  duty  of  said 
judges  to  make  the  appointment,  and  to  enter  the  same 
on  the  minutes  of  the  court.  They  shall  enter  into 
bond  to  the  city  in  such  sum  as  the  court  may  direct, 
with  one  or  more  sufficient  sureties,  to  be  approved  by 
the  court,  conditioned  for  the  faithful  discharge  of  their 
duties.  The  bond  so  taken  shall  be  deposited  with  the 
treasurer  of  the  corporation  for  safe  keeping. 

Sec.  3.  The  said  trustees  and  their  successors  shall  be 
the  trustees  of  the  said  fund,  and  shall  have  the  control 
and  disbursement  of  the  same.  They  shall  expend  said 
fund  in  procuring  the  right  to  construct,  and  in  construct* 
ing,  a  single  or  double  track  railway,  with  all  the  usual 
appendages,  including  a  line  of  telegraph  between  the 
termini  specified  in  the  said  resolution,  and  for  the  pur- 
poses aforesaid  shall  have  power  and  capacity  to  make 
contracts,  appoint,  employ,  and  pay  officers  and  agents, 
and  to  acquire,  hold  and  possess  all  the  necessarj'-  real 
and  personal  property  and  franchises,  either  in  this  State 
or  in  any  other  State  into  which  said  line  of  railway  may 
extend.  They  shall  also  have  power  to  receive  donations 
of  land,  money,  bonds  and  other  personal  property,  and  to 
dispose  of  the  same  in  aid  of  said  fund. 

Sec.  4.  The  said  trustees  sh;ill  form  a  board  and  shall 
choose  one  of  their  number  president,  who  shall  also  be 
the  acting  trustee,  with  such  power  as  the  board  may  by 
resolution  from  time  to  time  confer  upon  him.    A  major- 


IS  CI5C1KUATI   BOtmiKRir  RAILWAT. 

ity  of  said  trustees  shall  constitute  a  quorum,  and  shall 
hold  regular  meetings  for  the  transaction  of  business  at 
their  office  in  the  city  under  whose  action  they  are  ap- 
pointed, but  they  may  adjourn  from  time  to  time  to  meet 
at  any  time  and  place  they  may  tldiik  proper.  They 
shall  keep  a  record  of  their  proceedings,  and  they  shall 
cause  to  be  kept  a  full  and  accurate  account  of  their 
receipts  and  disbursements,  and  make  a  report  of  the 
same  to  the  city  auditor  annually,  and  whenever-  requested 
by  a  resolution  of  the  city  council.  No  money  shall  be 
drawn  from  said  fund  but  upon  the  order  of  said  board, 
except  their  own  compensation,  which  shall  be  paid  out  of 
the  same  upon  the  allowance  of  the  court  appointing 
them,  and  shall  be  proportioned  according  to  their  re- 
spective services. 

Sec.  5.  Said  trustees  shall  have  power  to  take  such 
security  from  any  oflicer,  agent  or  contractor  chosen,  ap- 
pointed or  emplo}ed  by  them,  as  they  shall  deem  advisa- 
ble. They  shall  not  become  surety  for  any  such  oflicer, 
agent  or  contractor,  or  be  interested  directly  or  indirectly 
in  any  contract  concerning  said  railway.  They  shall  be 
responsible  only  for  their  own  acts. 

Sec.  G.  Whenever  the  city  solicitor  of  any  city,  under 
whose  action  a  board  of  trustees  has  been  appointed  as 
herein  provided,  shall  have  reason  to  behevc  that  any  one 
of  said  trustees  has  tailed  in  the  faithful  performance  of 
his  trust,  it  shall  be  his  duty  to  apply  to  the  court  that 
appointed  said  trustee  by  petition,  praying  that  such 


CINCniNATI    60UTHEUN   RAILWAY.  13 

trustee  be  removed,  and  another  appointed  in  his  place; 
and  ^hen  a  vacancy  shall  occur  in  said  board  from  any- 
other  cause,  it  shall  be  filled  iri  like  manner.  If  the  said 
city  solicitor  shall  fail  to  make  .application  in  either  of 
the  foregoing  cases,  after  request  of  any  holder  of  the 
bonds  issued  by  said  trustees,  or  by  a  tax  payer  of  the 
corporation,  such  bondholder  or  tax  payer  may  file  a  peti- 
tion in  his  own  name  on  behalf  of  the  holders  of  such 
bonds  for  like  relief,  in  any  court  having  jurisdiction,  and 
if  the  court  hearing  the  action  shall  adjudge  in  favor  of 
the  plaintiff',  he  shall  be  allowed,  as  a  part  of  his  costs,  a 
reasonable  compensation  to  his  attorney. 

Sec.  7-  Whenever  in  the  construction  of  a  line  of  rail- 
way, as  herein  provided,  it  shall  be  necessary  to  appro- 
priate land  for  the  foundation  of  abutments  or  piers  of 
any  bridge  across  any  stream  within  or  bordering  upon 
this  State,  or  for  any  other  purpose,  or  to  appropriate  any 
rights  or  franchises,  proceedings  shall  be  commenced  and 
conducted  in  accordance  with  the  act  entitled  "an  act 
to  provide  for  the  conipens^ation  to  the  owners  of  private 
property  appropriated  to  the  use  of  corporations,"  passed 
April  3, 1852,  and  the  acts  supplementary  thereto,  except 
that  the  oath  and  verdict  of  the  jury  and  the  judgment 
of  the  court  shall  be  so  varied  as  to  suit  the  case. 

Sec.  8.  Whenever  there  shall  be  between  the  termini 
designated  in  any  resolution  passed  under  this  act  a  rail- 
road already  partially  construe. ed,  or  rights  of  way 
acquired  therefor,  which  can  be  adopted  as  a  part  of  the 


^4  CIKCINKATI    BOCTHIRN   RAILWAY. 

line  provided  for  in  said  resolution,  the  trustees  of  said 
line  may  purchase  the  said  railroad  and  right  of  way, 
and  pay  for  the  same  out  of  the  trust  fund. 

Sev?.  9.  The  said  trustees  shall  have  power,  as  fast  as 
portions  of  the  line  for  which  they  are  trustees  are  com- 
pleted, to  rent  or  lease  the  right  to  use  and  operate  such 
portions  upon  such  terms  as  they  may  deem  btst,  but 
such  rights  shall  cease  and  determine  on  the  final  com- 
pletion of  the  whole  line,  when  the  right  to  use  and  ope- 
rate the  same  shall  be  leased  by  them  to  such  person  or 
company  as  will  conform  to  the  terms  and  conditions 
which  shjiU  be  fixed  and  provided  by  the  council  of  the 
city  by  which  the  line  of  railroad  is  owned. 

Sec.  10.  The  city  council  of  any  city  passing  a  resolu- 
tion as  provided  in  the  first  section,  may  appropriate  and 
pay  to  the  said  trustees,  cut  of  the  general  fund  of  said 
city,  such  sum  as  may  be  necessary  for  defraying  the  ex- 
penses of  the  election,  and  said  sum  shall  be  repaid  out  of 
fiaid  trust  fund  when  raised. 

Sec.  11.  This  act  shall  take  effect  on  its  pa.ssige. 

F.  W.  THORNHILL, 
Speaker  o/  the  Ilovte  of  Keprettntativ$*. 
J.  C.  LEE, 

Praidtnt  ej  the  SenuU. 


i 


CINCINNATI   80DTHERN   RAILWAY.  15 


jiJV  ACT  supptemefifary  fo  fJie  act  relating  to  cities  of  the 
first  class  tiaying  a  population  exceeding  one  hundred  and 
fifty  thousand  inhabitants.    Passed  May  4,  A.  D.  1869. 

Passed  March  25,  1870. 

Sectiox  1.  Be  it  enacted  hy  the  General  Asseinbly 
of  the  State  of  Ohio,  That  the  city  council  of  any  city  of 
the  first  class,  described  in  the  act  to  which  this  is  sup- 
plementary, may,  after  trustees  have  been  appointed  as 
provided  in  said  original  act,  advance  to  said  trustees 
out  of  any  fund  of  said  city  such  sum  as  may  be 
necessary,  not  exceedinn;  fifty  thousand  dollars,  for  caiTy- 
ing  the  object  for  which  they  are  appointed  into  effect, 
and  said  sum  shall  be  repaid  out  of  the  trust  fund  pro- 
vided for  in  said  original  act  when  raised. 

Sec.  2.  This  act  shall  take  effect  on  its  passage. 

A.  J.  CUNNINGHAM, 

Speaker  of  the  Ilou»e  of  Representatives. 
J.  C.  LEE, 

President  of  the  Senate, 


16  CINCIKKATI    80CTHEBK    RAILWAr. 

A^  ACT  sypplementftry  to  **  7'Ae  act  rein  tin ff  io  cities  of 
tfte  first  class  tiar!n(/  a  popiilfttioti  excceditiff  one  t/tfjtdrcd 
and  fi/ty  thousand  in Jtahitaiits."    Pnwed  Mwy  4  A   T>  iw.q 

Passed  April  18,  1878. 

SrcnoN  1.  Be  it  enacted  hi/  the  General  Assembly 
of  the  State  of  Ohio,  That  the  respective  holders  of  all  the 
bonds  authorized  to  be  issued  by  the  act  to  which  this  act 
is  supplementary,  are  hereby  declared  to  be  entitled  to 
hold,  by  way  of  mortgage,  without  any  conveyance,  the 
line  of  railway  specified  in  the  resolution  of  the  city 
eouncil  and  its  append;iges  and  the  net  income  thereof, 
and  all  the  estate,  right,  title  and  interest  therein  of  the 
city  and  of  the  board  of  trustees  of  said  line,  until  the 
respective  sums  mentioned  in  said  bonds  and  the  inter- 
est thereon  shall  be  fully  paid,  without  any  preference 
one  above  another  by  reason  of  priority  of  date  of  any 
such  bonds,  or  of  the  time  when  such  holder  became  the 
owner  of  the  same,  or  otherwise  howsoever.  The  mort- 
gage lien  hereby  given  is  to  vest,  as  fast  as  rights  of  way, 
or  lands  whereon  the  works  and  conveniences  used  in 
constnicting,  maintaining  or  operating  said  railway  are 
acquired  or  taken  by  virtue  of  the  powers  of  the  said 
trustees.  Said  bonds  may  be  made  payable,  both  as  to 
principal  and  interest,  in  gold  or  lawful  money. 

Sec.  2.  Deeds  and  contracts  may  be  made,  and  pro- 
ceedings for  approiniation  and  actions  may  be  commenc- 
ed, either  in  the  name  of  the  city  providing  the  line  of 
railway,  or  in  the  name  of  the  *•  trustees  of rail- 


CINCINNATI    SOUTHERN    RAILWAY,  17 

way,"  (filling  the  blank  with  the  name  given  to  the  raiL 
way  in  the  resolution,)  and  said  proceedings  may  be 
commenced  and  conducted  either  in  the  court  of  com- 
mon pleas  or  the  probate  court,  as  in  other  cases  of  ap- 
propriation for  the  use  of  municipal  corporations. 

Sec.  3.  If  said  trustees  shall  find  it  necessary  for  the 
purposes  of  the  railway  to  use  or  occupy  any  street, 
alley,  or  other  public  way,  space  or  ground,  or  any  part 
thereof  belonging  to  such  city,  they  may  take  and  use,  or 
occupy  the  same ;  and  if  the  municipal  authorities  having 
charge  thereof  shall  require  said  trustees  to  provide  a 
new  street,  alley  or  other  way,  space  or  ground,  in  place 
of  that  so  used  or  occupied,  they  may  acquire,  by  pur- 
chase or  appropriation,  the  necessary  land,  and  cause 
the  necessary  improvement  to  be  made  thereon. 

Sec.  4.  In  addition  to  the  powers  given  to  the  said 
trustees  in  the  act  to  which  this  is  supplementary,  they 
shall  have  power  to  contract  for  completing  and  leasing 
the  whole  line  of  railway  for  which  they  are  trustees ;  but 
no  such  contract  and  lease  shall  be  made  until  they  shall 
have  prepared  and  submitted  for  inspection,  as  herein 
provided,  a  form  of  lease  containing  the  conditions  on 
which  said  line  of  railway  will  be  let  and  held.  After 
said  form  is  prepared,  it  shall  be  printed  in  full,  and  no- 
tice given  by  publication  in  two  or  more  newspapers  of 
general  circulation  in  said  city,  that  said  trustees  will 
attend  at  a  stated  time  and  place,  with  a  printed  copj'-, 
to  hear  such  suggestions  and  objections  as  may  be  urged 


A-  -^^"-^  ^^  ^//'/ 


/// 


18  CIKCINMATI    BOUTHERN   RAILWAY. 

in  regard  to  the  proposed  conditions.  Such  hearing 
shall  be  held  for  at  least  three  days,  and  for  such  further 
time  as  the  tmstees  shall  deem  necessary.  A  certified 
copy  of  the  form  of  lease  which  they  may  finally  adopt 
shall  be  deposited  with  the  city  auditor,  and  thereafter 
no  change  shsdl  be  made  in  the  conditions  without  a  new 
notice  and  like  hearing. 

Sec.  5.  This  act  shall  take  effect  on  its  passage. 

N.  H.  VAN  V()RHE.«, 
Speaker  of   the    House  of  Repreaentulivet. 
JACOB  MUELLER, 

President  of  the  Senate. 


PROCEEDINGS  IN 

Superior    Court    of    Cincinnati. 


¥leas  at  the  city  of  Cincinnati,  in  the  county  of  Hamilton  and 
State  of  Ohio,  in  the  Term  of  April,  anno  domini  one  thou- 
sand eiffht  hundred  and  seventy,  of  the  Superior  Court  of 
Cincinnati,  held  by  the  Hon.  Jf.  Ti.  Ilagans,  one  of  the 
Judges  of  the  said  court,  in  separate  session,  sitting  in  room 
J\io.  /,  in  the  court  house  in  the  city  of  Cincinnati,  county 
and  State  aforesaid. 


SUPERIOR  COURT  OF  CINCINNATI. 


J.  Brtant  Walker,  Solicitor  of  the  city  of  Cincinnati  and  a  tax  payer 

of  said  city, 

FlainlXff^ 

VERSOS 

The  CtTT  OF  Cincinnati,  Chas.  H.  Titus,  Auditor,  and  William  Hooper, 
Miles  Grkenwood,  Richard  M.  Bishop,  Philip  IIeideldach  and  Ed- 
ward A.  Ferguson,  Trustees  of  the  Cincinnati  Southern  Railway, 

DtftndanU, 


INJUNCTION  AND  OTHER  RELIEF. 


Be  it  remembered  that  heretofore,  to-wit :  on  the  12  th 
day  of  April,  a.  d.,  1 870,  came  the  above  named  plaintiff 
and  filed  in  the  office  of  the  Clerk  of  this  Court  his  certain 
petition  and  piaecipe  against  the  above  named  defendants, 
clothed  in  the  words  and  figures  following,  to-wit : 


20  CINCiyHATI   80UTHERK  BAILWAT. 

SUPERIOR  COURT  OF  CINCINNATI. 

No.  2^,007. 

J.  Bbtamt  Walkib,  Solicitor  of  the  city  of  Cincinnati  and  a  taz'pajer 

of  Baid  city, 


The  CiTT  OP  CiNCMNATi,  CnA».  11.  TiTiTS,  Aiiditor,  and  William  IIooPBa 
Miles  Gkkknwood,  Uiciiabd  M.  Disiiop,  Philip  Heideliiacii  and  Ed- 
WARD  A.  Fkbgusun,  TrustecB  of  the  Cincinnati  Southern  Railway. 

(Petition.) 

J.  Bryant  Walker  states  that  he  is  the  SoUci^or  of  the 
city  of  Cincinnati,  and  a  tax  payer  in  the  said  city,  and 
that  by  an  act  of  the  General  Assembly  of  the  State  of 
Ohio,  passed  on  the  4th  day  of  May,  eighteen  hundred 
and  sixty-nin^,  entitled  "An  act  relating  to  cities  of  the 
first  class  having  a  population  exceeding  one  hundred 
and  fifty  thousand  inhabitants,"  it  was  enacted  in  the  first, 
second,  third  and  fourth  sections  thereof,  as  follows : 

jiA^A  CT  rclatinff  to  cities  of  the  first  class  Ttaying  a  popu- 
lation exceediftf/  o?ie  hundred  and  /I/ty  thousand  inhabi- 
tatits. 

Section  1.  Beit  enacted  hy  the  General  Assembly 
of  the  State  of  Ohio,  That  whenever  in  any  city  of  the 
first  class  htiving  a  population  exceeding  one  hundred  and 
fifty  thousand  inhabitants,  the  city  council  thereof  shall 
by  a  resolution  passed  by  a  majority  of  the  members 
elected  thereto,  declare  it  to  he  essential  to  the  interests 
of  such  city  that  a  line  of  railway,  to  be  named  in  said 
resolution,  should  be  provided  between  termini  designated 
therein,  one  of  which  shall  be  such  city,  it  shall  be  law- 
ful for  a  board  of  trustees,  appointed  as  herein  provided, 
and  they  are  hereby  authorized  to  borrow,  as  a  fuud  lor 


CINCINNATI    80DTHERN   RAILWAY.  21 

that  purpose,  not  to  exceed  the  sum  of  ten  millions  of 
dollars,  and  to  issue  bonds  therefor  in  the  name  of  said 
city,  under  the  corporate  seal  thereof,  bearing  interest  at 
a  rate  not  to  exceed  seven  and  three-tenths  per  centum 
per  annum,  payable  at  such  times  and  places,  and  in  such 
sums  as  shall  be  deemed  best  by  said  board.  Said  bonds 
shall  be  signed  by  the  president  of  said  board,  and  attest- 
ed by  the  city  auditor,  who  shall  keep  a  register  of  the 
same,  and  shall  be  secured  by  a  mortgage  on  the  line  of 
railway  and  its  net  income,  and  by  the  pledge  of  the  faith 
of  the  city,  and  a  tax,  which  it  shall  be  the  duty  of  the 
council  thereof  annually  to  levy,  sufficient  with  said  net 
income  to  pay  the  interest  and  provide  a  sinking  fund 
for  the  final  redemption  of  said  bonds;  provided  that  no 
money  shall  be  borrowed  or  bonds  issued  until  after  the 
question  of  providing  the  line  of  railway  specified  in  the 
resolution  shall  be  submitted  to  a  vote  of  the  qualified 
electors  of  said  city,  at  a  s[>ecified  election,  to  be  ordered 
by  the  city  council  thereof,  of  which  not  less  than  twenty 
days  notice  shall  be  given  in  the  daily  papers  of  the  city  j 
and  further  provided,  that  a  majority  of  said  electors 
voting  at  such  election  shall  decide  in  favor  of  said  line 
of  railway.  The  returns  of  said  election  shall  be  made  to 
the  city  clerk,  and  be  by  him  laid  before  the  city  council, 
who  shall  declare  the  result  by  a  resolution.  The  bonds 
issued  under  the  authority  of  this  section  shall  not  be 
disposed  of  for  less  than  their  par  value. 

Sec.  2.  If  a  majority  of  the  votes  cast  at  said  election 
shall  be  in  favor  of  providing  the  line  of  railway,  as  speci- 
fied in  the  first  section,  it  shall  be  the  duty  of  the  solici- 
tor forthwith  to  file  a  petition  in  the  Superior  Court  of 
said  city,  or,  if  there  be  no  Superior  Court,  then  in  the 


22  CINCINNATI    BOOTnERN    RAILWAr. 

Court  of  Common  Plens,  of  tho  county  in  which  said  city 
is  situate,  praying  that  the  judges  thereof  will  appoint 

five  trustees,  to  be  called  the  trustees  of railway 

(the  blank  to  be  filled  with  tho  name  given  to  the  rail- 
way in  the  resolution),  and  it  shall  be  the  duty  of  said 
judges  to  make  the  appointment,  and  to  enter  the  same 
on  the  minutes  of  the  court.  They  shall  enter  into  bond 
to  the  city  in  such  sum  as  the  court  may  direct,  with  one 
or  more  suflicient  sureties,  to  be  approved  by  the  court, 
conditioned  for  the  faithful  discharge  of  their  duties.  The 
bond  so  tjiken  shall  be  deposited  with  the  treasurer  of  the 
corporation  for  safe  keeping. 

Sec.  3.  The  s:iid  trustees  and  their  successors  shall  be 
the  trustees  of  the  said  fund,  and  shall  have  the  control 
and  di.>-burscment  of  the  same.  They  shall  expend  said 
sum  in  procuring  the  right  to  construct,  and  in  construct- 
ing a  single  or  double  track  railway,  with  all  the  usual 
appendages,  including  a  line  of  telegraph  between  the 
termini  specified  in  the  said  resolution,  and  for  the  pur- 
poses aforesaid,  shall  have  power  and  capacity  to  make 
contracts,  appoint,  employ,  and  pay  officers  and  agents, 
and  to  acquire,  hold  and  possess  all  the  necessary  real 
and  personal  property  and  franchises  either  in  this  State 
or  in  any  other  State  into  which  said  line  of  railway  may 
extend.  They  shall  also  havo>  power  to  receive  donations 
of  land,  money,  bonds,  and  other  personal  property,  and 
to  dispose  of  same  in  aid  of  said  fund. 

Sec.  4.  The  said  trustees  shall  form  a  board  and  shall 
choose  one  of  their  number  president,  who  shall  also  be 
the  acting  trustee,  with  such  power  as  the  board  may,  by 
resolution,  from  time  to  time  confer  upon  him.  A  ma- 
jority of  said  trustees  shall  constitute  a  quorum,  and  shall 


CINCINKATI    SOUTHERN   RAILWAT.  23 

hold  regular  meetings  for  the  transaction  of  business  at 
their  office  in  the  city  under  whose  action  they  are  afp- 
pointed,  but  they  may  adjourn  from  time  to  time  to  meet 
at  any  time  and  place  they  may  think  proper.  They 
shall  keep  a  record  of  their  proceedings,  and  they  shall 
cause  to  be  kept  a  full  and  accurate  account  of  their  re- 
ceipts and  disbursements,  and  make  a  report  of  the  same 
to  the  city  auditor  annually,  and  whenever  required  by 
a  resolution  of  the  city  council.  No  money  shall  be 
drawn  from  said  fund  but  upon  the  order  of  said  board, 
except  their  own  compensation,  which  shall  be  paid  out 
of  the  same  upon  the  allowance  of  the  court  appointing 
them,  and  shall  be  proportioned  according  to  their  re- 
spective services. 

That  afterwards  on  the  4tb  day  of  June,  in  the  year 
aforesaid,  the  City  Council  of  the  city  of  Cincinnati,  re- 
citing in  a  preamb!e  the  powers  conferred  in  the  first 
section  of  the  said  act,  and  that  the  said  city  of  Cin- 
nati,  in  the  State  of  Ohio,  was  a  city  of  the  first  class, 
having  a  population  exceeding  one  hundred  and  fifty 
thousand  inhabitants,  resolved  in  pursuance  and  by  vir- 
tue of  the  powers  in  saia  act  given  (a  majority  of  all 
the  members  elected  thereto  concurring)  as  follows : 

First.  That  the  said  City  Council  hereby  declares  it  to 
be  essential  to  the  interests  of  the  said  city  of  Cincin- 
nati, that  a  line  of  railway,  to  be  named  "  The  Cincin- 
nati Southern  Railway,"  shall  be  provided  between  the 
said  city  of  Cincinnati  and  the  city  of  Chattanooga,  in 
the  State  of  Tennessee. 

Secondly.  That  a  special  election  be  held  on  Saturday, 
the  20th  day  of  June,  18G9,  at  which  election  the  ques- 
tion of  providing  the  said  line  of  railway  shall  be  sub- 


Si  ClKOINNATI   BOITTIIERN   RAtLWAT. 

mitted  tx>  a  vote  of  the  qualified  electors  of  the  said  city ; 
and  the  City  Clerk  is  hereby  directed  to  cause  to  be 
printed  a  suflicient  number  of  two  sets  of  ballots  (not 
less  than  one  hundred  thousand  of  each  set)  for  use  at 
each  voting  place,  upon  one  of  which  sets  shall  be  print- 
ed :  •*  Special  election  to  decide  for  or  against  jiro- 
viding  a  line  of  railway  between  Cincinnati^  Oliioy 
and  the  city  of  Chattanooga,  State  of  Tennessee, 
For  puoviDiNQ  said  line  of  railway."  And  upon  the 
other  set  shall  be  printed :  "  Special  election  for  or 
against  i)roviding  a  line  of  railway  between  Cin" 
cinnati,  Ohio,  and  the  city  of  Chattanooga,  State 
of  Tennessee,  Against  providing  said  line  of  rail- 
way." 

Thirdly.  That  the  Mayor  of  the  said  city  of  Cincin- 
nati be,  and  he  is  hereby  directed  to  issue  his  proclama- 
tion to  the  qualified  voters  of  sjiid  city,  giving  notice  of 
said  special  election,  and  of  the  time  and  places  of  hold- 
ing the  same,  and  that  said  proclamation  be  published  in 
the  daily  newspapers  of  said  city,  at  least  twenty  days 
before  said  election.  Said  election  shall  be  held  at  the 
usual  places  of  voting  at  municipal  elections  in  each  ward, 
and  shall  be  conducted  in  the  manner  prescribed  by  law 
for  holding  municipal  elections.  The  returns  of  said 
election  shall  be  made  to  the  City  Clerk,  and  shall  by  him 
be  laid  before  the  City  Council,  who  shall  declare  the  re- 
sult by  a  resolution. 

That  in  pursuance  and  by  virtue  of  said  resolutions 
the  Hon.  John  F.  Torrence,  Mayor  of  the  said  city  of 
Cincinnati,  did  by  his  proclamation  published  in  all  the 
daily  newspapers  of  said  city  for  more  than  twenty  days 
prior  to  the  day  of  said  special  election,  give  notice  to  the 


CINCINNATI    SOUTHERN   RAILWAY.  25 

qualified  electors  of  said  city  that  a  special  election  to 
decide  for  or  against  providing  the  said  line  of  railway 
would  be  held  on  Saturday,  the  26  th  day  of  June,  a.  d., 
180  9,  and  that  polls  would  be  open  at  the  usual  places 
of  voting  at  municipal  elections  in  each  ward,  between 
the  hours  of  six  o'clock  in  the  morning  and  six  o'clock 
in  the  evening  of  said  day. 

That  afterwards,  to-wit :  on  the  28th  day  of  June,  in 
the  year  18G9,  the  said  Mayor  sent  his  message  to  the 
City  Council  of  the  said  city  of  Cincinnati,  certifying 
under  his  hand  and  the  corporate  seal  of  the  said  city, 
that  he  had  given  notice  of  the  time  and  place  of  holding 
the  said  special  election,  as  above  stated,  and  the  City 
Clerk  of  said  city  laid  before  the  said  City  Council,  at  a 
meeting  thereof,  duly  convened  on  said  last  mentioned 
day,  the  returns  of  said  election ;  whereby  it  appeared 
that  at  said  special  election  there  were  cast  fifteen  thou- 
sand, four  hundred  and  thirty-five  (15,435)  ballots  of 
the  qualified  electors  of  said  city,  for  providing  said  line 
of  railway,  and  fifteen  hundred  (1,500)  ballots  against 
providing  said  line  of  railway. 

Whereupon  the  said  City  Council  declared  by  a  resolu- 
tion that  the  result  of  said  special  election  was  that  a 
majority  amounting  to  thirteen  thousand  nine  hundred 
and  thirty-five  of  the  votes  cast  at  said  special  election 
was  in  favor  of  providing  said  line  of  railway  between  the 
said  city  of  Cincinnati,  Ohio,  and  the  said  city  of  Chat- 
tanooga, in  the  State  of  Tennessee. 

That  thereafter  the  city  of  Cincinnati  filed  in  the 
Superior  Court  of  Cincinnati,  in  cause  No.  24,749,  in  the 
said  Court  on  the  30th  day  of  June,  1869,  a  petition 
reciting  the  facts  set  forth  above,  and  praying  for  the  ap- 

8 


M  OINCIKNATI    SODTnCRK   RAILWAY. 

pointment  of  five  trusteRS,  to  be  called  the  Trustees  of 
the  Cincinnati  Southern  Railway,  with  all  the  powers 
given  ill  the  above  recited  act,  and  that  their  appoint- 
ment lie  entered  on  the  minutes  of  the  said  Court,  as  the 
act  provides. 

That  on  the  said  30th  day  of  June,  1860,  the  fol- 
lowing order  was  made  and  entered  upon  the  minutes  of 
the  said  Cuurt : 

In  the  natter  of  the  applicAtion  of  the  eitj  of  CiDcinnaii  for  the  ap- 
pointmeat  of  the  Trustees  of  the  Cincinaati  Southern  Railway. 

The  petition  of  the  city  of  Cincinnati,  by  J.  Bryant 
Walker,  City  Solicitor  fur  said  city,  having  been  filed  in 
this  Court,  praying  that  the  judges  thereof  would  appoint 
jBve  trustees,  to  be  called  the  Trustees  of  the  Cincinnati 
Southern  Railway,  with  the  powers  given  in  the  act  of  the 
General  Assembly  of  the  State  of  Ohio,  pnssed  on  the 
4th  day  of  May,  in  the  year  18G9,  entitled  *-An  Act  re- 
lating to  cities  of  the  fiist  class  having  a  population 
exceeding  one  hundred  and  fifty  thousand  inhabitants." 
And  the  Court  and  the  Judges  thereof  being  satisfied,  and 
finding  that  all  the  statements  made  in  the  said  petition 
are  true  in  substance  and  in  fact,  hereby  appoint  lildiard 
M.  Bishop,  Edward  A.  Ferf/uson,  Miles  Green" 
woody  Philip  Ileldelhach  and  William  Hooper,  to  be 
Trustees  of  the  Cincinnati  Southern  Railway,  with  the 
powers  given  in  the  act  aforesaid,  and  order  that  the  said 
Trustees  severally  enter  into  bond  to  the  said  city  of  Cin- 
cinnati, in  the  sum  of  one  hundred  thousand  dollars  with 
four  sureties  each,  to  be  approved  by  the  Court,  con- 
ditioned for  the  faithful  discharge  of  their  duties.  And 
it  is  also  ordered  that  upon  giving  bond  as  aforesaid,  the 


CINCINNATI    SOUTHERN   RAILWAY.  27 

Clerk  of  this  Court  deliver  a  certified  copy  of  this  order 
to  each  of  said  Trustees  as  the  evidence  of  his  appoint- 
ment. 

And  afterwards,  to  wit:  on  the  3d  day  of  July,  in  the 
term  and  year  last  aforesaid,  the  following  entry  was 
made  in  said  cause  on  the  journal  of  said  Court,  to-wit: 

(Min.  5018.     Bonds  Approved.) 

This  day  came  the  Trustees  of  the  Cincinnati  Southern 
Railway,  who  were  heretofore  appointed,  and  presented 
their  said  bonds  with  the  following  named  persons : 

1 — As  sureties  for  Richard  M.  Bishop,  as  Trustee 
aforesaid,  Carlos  II.  Gould,  William  S.  Dickinson,  James 
A.  Frazer  and  Wm.  Glenn. 

2 — As  sureties  for  Edward  A.  Ferguson,  as  Trustee 
aforesaid,  Charles  W.  West,  Anthony  D.  Bullock,  Henry 
Lewis  and  John  Schiflf. 

3 — As  sureties  for  Miles  Greenwood,  as  Trustee  afore- 
said, Robert  Mitchell,  Lewis  Worthington,  William  Woods, 
Joseph  C.  Butler  and  Peter  Gibson. 

4 — As  sureties  for  Philip  Heidelbach,  as  Trustee  afore- 
said, Jacob  Seasongood,  Jacob  Elsas,  Abram  Akerland 
and  Samuel  Thoruer. 

5 — As  sureties  for  William  Hooper,  as  Trustee  afore- 
said, Learner  B.  Harrison,  Leverett  G.  E.  Stone,  Davi'd 
H.  Ta}  lor  and  Thomas  R.  Biggs. 

And  the  Court  being  satisfied  that  such  sureties  are 
suflicieut,  ai-prove  the  said  bonds  with  sureties  aforesaid, 
and  order  that  the  City  Solicitor  receive  and  deposit 
sjiid  bonds  with  the  Treasurer  of  the  said  city  of  Cincin- 
nati, as  provided  by  the  statute. 


Z8  ,        CnfCINWATl   SOlTTHERlf  RAILWAY. 

Thereupon  the  said  Trustees  appeTed  in  open  court 
and  were  duly  sworn  to  discharge  their  duties  as  trustees 
as  aibresiiid. 

And  afterwards,  to-wit :  on  the  8th  day  of  July,  a.  d. 
18G9,  there  was  filed  in  the  office  of  the  Clerk  of  said 
Court  a  certain  receipt  clothed  in  the  words  and  figures 
following,  to-wit : 


(Receipt  of  Citj  Treasurer  for  Bonds.) 


CiTT  Of  C 

Treasurer's  Office, 


IN*CIS5ATT,  1 

e.July  G,  18f)9.  I 


Reccired  of  J.  Bryant  Walker,  city  solicitor,  the  bonds  of  the  following 
mamed  Trustees  of  the  Soulbera  Railway : 

WILLIAM  HOOPER, 
WILES  GREENWOOD, 
R.  M.  BISHOP, 
r.  IIEIDELBACH, 
E.  A.  FERGUSON. 

Filed  in  the  City  Treasnrer's  ofBoe,  aceordini;  to  law. 

ROBERT  MOORE, 

Cift/  Treantrer. 

That  on  the  6th  day  of  July,  ISGO,  they  met  and 
chose  Miles  Greenwood  President,  and  appointed  Henry 
H.  Tatem  Secretary,  and  ordered  thai  their  office  be  kept 
at  the  rooms  of  the  Board  of  Trade  of  Cincinnati,  in 
Pike's  Opera  House  Building,  and  that  their  regular 
meeting  be  held  on  the  first  Tuesday  of  each  month,  at 
3  P.  M. 

That  since  the  last  mentioned  date  they  have  procured 
the  consent  of  the  State  of  Tennessee  to  the  construction 
and  maintenance  of  the  said  line  of  railway,  and  to  the 
exercise  of  the  powers  vested  in  them  as  aforesaid  in  said 
State,  and  have  made  application  for  a  like  consent  from 
the  Commonwealth  of  Kentucky,  in  which  latter  State, 
however,  no  grant  has  yet  been  made. 


OINOINNATI    SOUTHERN   RAILWAY.  29 

That  for  the  purpose  of  further  enabling  the  Trustees 
appointed  under  said  act  of  May  4th,  18G9,  to  carry  into 
efiect  the  purposes  of  such  act,  the  General  Assembly  of 
the  State  of  Ohio,  on  the  25th  day  of  March,  1870, 
passed  the  following  act : 

^JV  AC  T supplementary  to  the  act  relating  to  cities  of  the 
jftrst  class  haying  a pnpulatioti  exceeding  one  hundred  and 
jft//y  thousand  i?thabitants. 

Passed  May  4,  A.  D.  1869. 

Section  1.  Beitennctedhythe  General  Assembly  of 
the  Slate  of  Ohio,  That  the  city  council  of  any  city  of 
the  first  class  described  in  the  act  to  which  this  is  su[)ple- 
mentary,  may,  after  trustees  have  been  appointed,  as  pro- 
vided in  said  original  act,  advance  to  taid  trustees  out  of 
any  fund  of  said  city,  such  sum  as  may  be  necessary,  not 
exceeding  fifty  thousand  dollars,  for  carrying  the  object 
for  which  they  are  appointed  into  eflect,  and  said  sum 
shall  be  repaid  out  of  the  trust  fund  provided  for  in  said 
original  act,  when  raised. 

Sec.  2.  This  act  shall  take  effect  on  its  passage. 

That  thereupon,  upon  the  2d  day  of  April,  1870,  the 
City  Council  of  the  city  of  Cincinnati  passed  an  ordinance 
advancing  the  sum  of  $50,000  out  of  the  interest  iund, 
to  be  paid  to  the  said  Trust aes  as  a  loan,  to  be  repaid  out 
of  the  proceeds  of  the  first  bonds  sold. 

That  Charles  XL  Titus  is  the  Auditor  of  the  city  of  Cin- 
cinnati, and  that  a  [lortion  of  the  funds  so  appiopriated 
are  still  unpaid,  and  that  he  will  pay  the  same  unless  re- 
strained by  the  Court. 

Piaintiff  submits  to  the  Court  that  the  statutes  of  the 
State  of  Ohio  above  recited,  are  unconstitutional  and 


80  ClNaKNATI    BOOTBRRV   RAILWAY. 

void,  and  that  the  advance  of  such  money  is  a  misappli- 
cation of  the  funds  of  the  corporation  and  in  contraven- 
tion of  the  laws  governing  the  sjime,  and  is  not  proper 
cor|  orate  use. 

Wherefore  plaintiff  prays  the  Court  to  enjoin  the  pay- 
ment of  sjiid  money  so  appropriated,  and  for  such  other 
reUef  as  may  be  equitable  and  just. 

J.  BRYANT  WALKER, 

Solieitor. 

8tatk  of  Ohio,  ■> 

Jlumillon  County,  j     ' 

J.  Bryant  Walker  on  oath  says  that  the  faels  set  forth  in  tb«  abore 
petiiion  are  true. 

J.  BRYANT   WALKER. 

Subscribed  in  mj  presence  and  sworn  to  before  me  bj  said  affiant  this 
lllh  day  of  April,  1870. 

[n.  p.  SKAt.}  J.  W.  WARRINGTON, 

Notary  Public 

SUPERIOR  COURT  OF  CINCINNATI. 

(Praecipe.) 

J.  Bbtamt  Walker,  Solieitor  of  Cincinnati,  and  a  tax  payer  of  said  ci(y» 

Plaintiff, 

VERSUS 

CiTT  0?  CixciKNATT,  CiiAs.  H.  TiTcs,  Auditor,  and  Wm.  Hooper,  Miles 
Greenwood,  R.  M.  Bishop,  P.  Heiuelbacu  and  E.  A.  Febous(in,  Trus- 
tees of  the  Cincinnati  Southern  Railway,  Dt/indantt. 

To  Clerk: 

Issue  summons  to  each  of  the  abore  named  defendants,  and  endorse  ob 
Bommons :  For  injunction  and  other  relief. 

WALKER  &  CO.NNER, 

Solicitor*. 

"Whereupon,  on  the  12th  day  of  April,  a.  d.  1870,  there 
"was  issued  from  the  office  of  the  Clerk  of  sjiid  Court  a  cer" 
tain  summons,  directed  to  the  Sherifl'  of  Hamilton  county, 
clothed  in  the  words  and  figures  following,  to-wit : 


CINCINNATI   SOUTHERN   RAILWAY.  31 

SUPERIOR  COURT  OF  CINCINNATI. 

(Summons.) 

The  State  of  Ohio,  "I 

IJamilton  County,  > 

City  of  Cincinnati,  j 

To  the  Sheriff  of  the  County  of  HamiUon: 

You  are  commanded  to  notify  the  city  of  Cincinnati, 
Chas.  II.  Titus,  Auditor,  and  Wm.  Hooper,  Miles  Green- 
wood, R.  M.  Bishop,  P.  lieidelbach,  and  E.  A.  Ferguson, 
Trustees  of  the  Cincinnati  Southern  Rail'Aay,  defendants, 
that  they  have  been  sued  by  J.  Bryant  Walker,  Solicitor 
of  the  city  of  Cincinnati,  and  a  tax  payer  of  said  city, 
plaintiff,  in  the  Superior  Court  of  Cincinnati,  and  that 
unless  they  answer  by  the  14  th  day  of  May,  A.  d.  1870, 
the  petition  cf  the  said  plaintiffs  against  them,  filed  in 
the  Clerk's  office  of  said  Court  such  petition  will  be  taken 
as  true,  and  judgment  rendered  accordingly. 

You  will  make  due  return  of  this  summons  on  the  25th 
day  of  April,  a.  d.  Ib70. 

Witness  my  hand  and  the  seal  of  said  Court  at  Cincin- 
nati, this  12th  day  of  April,  one  thousand  eight  hundred 

and  seventy. 

[seal.]  h.  h.  tinker, 

Clerk  of  the  Superior  Court  of  Cincinnati. 
By  EyiL  Hoffvan,  Ikpuly. 

Which  summons  is  endorsed  as  follows,  to-wit : 

(Endorsed.) 

Suminons  in  action  for  injunction  and  other  relief.     To  25th  day  of 
Apiil,  1870. 

WALKER  &  CONNER, 

Attorneyi. 

And  afterward,  to-wit:  on  the  25th  day  of  April,  a.  d. 
1870,  came  the  said  Sheriff  and  duly  returned  the  fore- 
going summons,  with  his  return  thereon  endorsed,  clothed 
in  the  words  and  figures  following,  to-wit ; 


88  CINOIXNATI    8O0THERN    RAILWAY. 

(Return.) 

1870.  April  12.  Served  city  of  Cincinnati  by  deliv- 
ering true  copy  to  John  F.  Torreuce,  Mayor,  personally. 
Served  Chas.  II.  Titus,  Auditor,  with  copy  personally. 

1870.  April  13.  Served  Wm.  Hooper,  P.  Heidelbach 
and  E.  A.  Ferguson,  each  with  copy  personally.  Served 
Miles  Greenwood  and  K.  M.  Bishop,  each,  by  leaving  copy 
at  his  residence,  Trustees  of  the  Cincinnati  Southern 
Railway. 

D.  WEBER, 

Sheriff. 
Bj  I.  H.  BiKD,  Deputy, 

And  afterward,  to-wit :  on  the  18th  day  of  April,  a.  d. 
1870,  came  the  said  defendants  by  their  Attorney,  E.  A. 
Ferguson,  and  filed  in  the  oilice  of  the  Clerk  of  stiid  Court 
their  certain  demurrer,  clothed  in  the  words  and  figures 
following,  to-wit : 

SLTERIOR  COURT  OF  CINCINNATI. 

No.  26,007. 

J.  Bryant  Walkxb,  Solicitor  of  the  City  of  Cincinnati  and  a  tax  payer 

of  said  city, 

Plaintiff 

AGAINST 

Tbs  Citt  or  Cixci.vNATi,  Cbables  H.  Titus,  Auditor,  William  IIoopkb, 
Milks  Gbeexvood,  R.  M.  Disuop,  P.  Heihelbacu  and  £.  A.  Ferguson, 
Trustees  of  tlie  Ciuciuiiaii  Soutbern  Railway. 

Difendants. 

(Demurrer  of  defendanls.) 

The  defendants  above  named  come  and  demur  to  the 
petition  of  the  plaintilf  and  for  cause  assign: 

That  the  facts  stated  in  said  petition  do  not  constitute 
a  cause  of  action  against  them  or  either  of  them. 

E.  A.  FERGUSON, 

Allomty  of  D^endaatu 


CINCINNATI    SOUTHERN   RAILWAY.  33 

And  thereupon,  to-wit :  on  the  18th  day  of  April,  in 
the  term  of  April,  a.  d.  1870,  of  sjiid  Court,  the  following 
order  of  reservation  was  made  and  entered  in  said  action, 
to-wit : 

SUPERIOR  COURT  OF  CINCINNATI. 

No.  20,007 

J.  Rbtamt  Walkeb,  City  Solicitor  and  a  tax  payer  of  said  city  of  Cin- 
cinnati, 


AGAINST 

The  City  of  Cincinnati  and  Otders. 


Plaintiff, 


Defendants.. 


(Entry  of  reservation.     Min.  87.) 

It  is  ordered  that  the  questions  of  law  arising  upon  the 
demurrer  of  the  defendants  to  the  plaintiff's  petition  be 
reserved  and  adjourned  for  the  decision  of  the  Court  in 
general  term. 

And  the  cause  was  removed  to  the  general  term  of 
the  Superior  Court  of  Cincinnati  upon  the  above  recited 
order  of  reservation. 

SUPERIOR  COURT  OF  CINCINNATI. 

No.  26,007.    General  Term.    No.  1,508. 

^leas  af  t?ie  City  o/  Cincinnati,  in  the  county  of  Hamilton, 
State  of  Ohio,  in  the  General  'I'erm  of  January,  anno 
domini  one  thottsa7i(l  eif/ht  handred  and  seycnty-one,  of  the 
Siij)erior  Court  of  Cincinnati,  held  by  the  JJonorables  liel- 
laviy  Storer,  Alphonso  Taft  and  .  U.  2i.  JIagans,  Judges 
of  the  said  court,  sitting  in  fioom  JVo.  3,  in  the  court  house, 
in  the  city  of  Cincinnati,  county  and  State  aforesaid,  the 
Hon.  Jt.  !S.  JIagans  presiding. 

And  now,  to-wit :  on  the  4th  day  of  January,  a.  d. 
1871,  in  the  term  and  year  last  aforesaid,  the  following 
entry  was  made  on  the  journal  of  said  court,  to-wit : 


84  OINCIXKATI   BODTnEItir   BAILWAT. 

J.  Bryant  Walker,  Solicitor  of  the  citj  of  CincinBali,  and  »  (sz  payer 
of  said  citj, 

Plaintif, 

AQAINST 

Tire  CiTT  OF  Cxscirt^kTX.  TnAwtit*  H.  Tirrs,  Auditor,  and  WittiAM  Hoopkr, 
Miles  Orrenwood,  B.  M.  Disiior,  P.  Heidelbacu  and  £.  A.  Ferqubov 
Trustees  ot  llie  Ciuciunali  Suutheru  lUilwaj. 

De/endantt. 
(Judgment  entry.     Min.  2.) 

This  cause  came  on  to  be  heard  upon  the  petition,  and 
the  demurrer  of  the  defendants  thereto,  upon  considera- 
tion whereof  the  Court  find  that  said  demurrer  is  well 
taken,  and  sustain  the  same.  It  is,  therefore,  ordered 
and  adjudged  that  the  plain' iff's  petition  be  disnnssed, 
and  that  the  defendants  recover  their  costs  herein  to  be 
taxed. 

SUPERIOR  COURT  OF  CINCINNATI. 


.)■ 


TnK  State  of  Ohio, 

JJamilion  Count  if,  \  set. 

Giy  oj   Cincinnati. 

I,  IT.  II.  Tinker,  Clerk  of  the  Superior  Court  of  Cin- 
cinnati, do  hereby  certify  the  ahove  and  foregoing  to  be 
a  full,  correct  and  complete  record  of  all  the  proceedings 
and  judgment  had  in  the  case  wherein  J.  Bryant  Walker, 
Solicitor  of  the  city  of  Cincinnati  and  a  taxpayer  of  said 
city,  was  plaintift',  and  city  of  Cincinnati,  Chas.  II.  Titus, 
Auditor,  Wm.  Hooper,  Miles  Gr«  enwood,  li.  ]\I.  Bishop, 
P.  Ileidelbach,  and  E.  A.  Ferguson,  trustees  of  the  Cin- 
cinnati Southern  Railway,  were  defendants,  No.  26,007, 
as  the  same  appears  from  the  files  and  journals  of  said 
Court  in  my  office  remaining. 

"Witness  my  hand,  and  the  seal  of  said  Court,  at  Cin- 
cinnati, this  11th  day  of  January,  a.  d.  1871. 

[seal]  H.  II.  TINKER, 

Clerk  qf  the  Superior  Court  qf  Ctncinnati, 


CINCINNATI   SOUTHERN   RAILWAY.  35 

OPINION  OP  THE  SUPERIOR  COURT  OF  CINCIN- 
NATI. 

In  General  Term,  January  4,  1871. 

J.  Bbtant  Walkkb,  Solicitor  of  the  city  of  Cincinnati,  and  a  Taxpayer 
of  said  oity, 

Flaintif, 


The  City  of  Cincinnati,  Chas.  H.  Titus,  Anditor,  and  Wiluam  Hooper, 
Mii.es  Greenwood,  Riciiabd  M.  Bishop,  Philip  Hkidklbach  and  E.  A. 
Feeouson,  Trustees  of  the  Southern  Railway, 

De/endanti. 

Taft,  J. : — This  suit  is  brouo;ht  for  an  injunction  against 
the  city  and  the  Trustees  of  the  Cincinnati  Southern 
Railway.  The  petition  recites  the  act  of  the  1  egisla- 
ture,  passed  May  4,  1869,  to  authorize  the  appointment 
of  trustees  and  the  construction  of  the  roatl,  and  the 
issuing  of  bonds  of  the  oity  to  the  amount  of  ten  mil- 
lion dollars  for  that  purpose;  alleges  the  appointment  of 
the  trustees  under  the  act,  and  recites  the  proceedings  of 
this  Court,  as  recorded,  in  relation  to  said  appointment, 
stating  that  the  Trustees  have  organized  and  obtained  an 
ofBce ;  that  they  have  procured  the  consent  of  the  Legis- 
lature of  Tennessee  to  build  the  road  through  that  State, 
and  applied  to  the  Legislature  of  Kentucky  for  a  like 
consent ;  that  the  Ohio  Legislature  have  passed  another 
act,  of  March  25,  lb70,  supplementary  to  that  of  May 
4,  1860,  authorizing  the  city  to  advance  fifty  thousand 
dollars  to  the  Trustees  for  the  jmrpose  of  carrying  into 
effect  the  object  of  their  appointment,  to  be  repaid  out  of 
the  bonds  to  be  Issued  under  the  original  act ;  that  the 
Auditor  has  appropriated  a  portion  of  said  fund,  aud 


86  OIMCIMNATI   SOOTHKRN  RAILWAY. 

there  remains  a  part  unappropiiated ;  that  the  acts  above 
mentioned  are  unconstitutional  and  void,  and  tlie  advance 
of  this  money  a  misapplication  of  the  public  fumls  and 
not  a  proper  corporate  use,  and  asking  an  injunction. 

The  defendants  have  demurred. 

We  have  thus  presented  for  our  consideration  the 
constitutionality  of  those  acts  by  which  the  city  of  Cin- 
cinnati has  been  authorized  to  construct  the  Southern 
Rjiiiroad,  and  to  expend  money  preliminary  to  its  con- 
struction by  surv^eys  and  other  preparations  for  the  work. 

That  the  Legislature  regarded  the  road  as  a  matter 
of  public  concern  to  the  city,  and  a  proper  work  to  be 
carried  through  by  taxation  on  city  property,  is  shown  by 
the  enactment  of  the  law  authorizing  the  issue  of  the 
bonds  to  build  it,  and  the  levy  of  the  tax  to  pay  the 
interest  thereon ;  and  that  the  people  of  Cincinnati 
entertain  a  like  opinion  is  also  evinced  by  the  popular 
vote,  as  well  as  by  the  proceedings  of  the  legislative  body 
of  the  city. 

The  importance  of  this  project,  as  a  Cincinnati  project, 
and  its  public  character  as  a  subject  of  taxation,  are  ques- 
tions, therefore,  which  have  already  been  decided  by  tiiose 
most  deeply  concerned,  and  by  those  who  have  been 
especially  and  primarily  intrusted  with  their  decision; 
and  it  would  require  a  clear  case  against  the  opinions  of 
the  city  and  State  Legislatures,  thus  unequivocally  ex- 
pressed, to  justify  the  Court  in  contradicting  them  in  its 
finding  on  this  point 

It  has  been  held  by  our  Supreme  Court  that  the  con- 
struction of  a  railroad  might  be  a  proper  subject  for  the 
taxation  of  a  municipal  corporation,  independent  of,  and 


CINCINNATI   SOUTHERN   RAILWAY.  37 

prior  to,  the  restriction  in  our  present  constitution,  and 
the  issue  of  bonds  and  the  levy  of  taxes  to  pay  the  in- 
terest on  them,  was  enforced  by  a  writ  of  mandamus 
since  the  constitution  of  1851  was  adopted,  the  act  un- 
der which  the  subscription  was  made  having  beeu  passed 
prior  to  the  change  in  the  constitution.  If  the  con- 
struction of  a  railroad  had  been  a  purpose  beyond  the 
scope  of  municipal  taxation,  the  restriction  in  the  new 
constitution  upon  the  power  of  a  city  to  lend  its  credit 
or  otherwise  assist  a  private  corporation  in  its  con- 
struction, would  not  have  been  required. 

The  form  in  which  such  aid  was  granted,  usually,  was 
by  lending  bonds  or  money  to  the  corporation  which  was 
constructing  it,  or  by  subscribing  to  its  capital  stock. 
The  railroad  company  was  a  private  corporation,  and 
operated  its  road  for  its  own  profit,  but  the  public  derived 
large  incidental  advantages  from  its  use.  In  this  State, 
it  has  been  several  times  decided,  that  a  municipal  cor- 
poration had  an  interest  in  such  a  work  to  justify  a  mu- 
nicipal tax  to  aid  in  carr)  ing  it  through.  (2  0.  S.  607 
647,649;  14  0.8.472,479.) 

If,  then,  the  restriction  in  the  present  constitution 
against  the  aiding  or  subscribing  to  the  stock  of  railroad 
companies  by  towns,  cities,  and  counties  had  been  omitted 
the  Legislature  might  have  authorized  such  aid  to  rail- 
road corporations.  (Cass ys.  Dillo7i,2  0.  S.  608;  Cln- 
cinnatif  Wilmington  cO  Zanesville  Hailroad  Com- 
pany  vs.  Commissioners  of  Clinton  County,  1  0.  S. 
77;  Fosdick  vs.  Village  of  Perryshurgf  14 
0.  S.  473.) 

It  evidently  follows,  from  these  repeated  adjudications, 


88  OIKCIXNATI   800tl!EKN   RAILWAY. 

that,  if  the  Legislature,  under  the  old  Constitution,  in- 
stead of  authorizing  municipal  corporations  to  aid  private 
corporations  in  constinictiiig  railroads,  hy  the  issue  of 
bonds,  or  subscriittion  to  the  capibil  stock  of  such  com- 
panies, had  authorized  a  city  itself  to  constiuct  a  rail- 
road deemed  of  public  importance  to  such  city,  and  in- 
dispeusjible  to  its  welfire,  it  would  have  been  constitu- 
tional. The  same  reason  would  have  justified  both 
methods  of  securing  the  same  object. 

It  would  have  been  at  least  as  constitutional  to  have 
authorized  the  city  to  build  the  road,  as  to  have  authorized 
it  to  lo  in  money  to  a  private  corporation,  in  order  that  it 
might  build  it.  By  the  latter  plan,  the  accomplishment 
of  a  public  purpose  through  the  application  of  the  public 
funds,  uas  left  dependent  upon  the  good  faith  and  discre- 
tion of  a  private  corporation,  whose  legitimate  object  was 
profit  to  its  individual  stockholders.  This  has  long  been 
regarded  as  objectionable. 

The  restriction  in  the  present  constitution  which  is  sup- 
posed to  prohibit  the  act  authorizing  the  city  of  Cincin- 
nati to  build  its  Southern  Railroad,  is  contained  in  the 
sixth  section  of  the  eighth  article,  which  provides  "that 
the  General  Assembly  shall  never  authorize  any  county, 
city,  town,  or  township,  by  a  vote  of  the  citizens  or  other- 
wise, to  become  a  stockholder  in  any  joint  stock  com- 
pany, corporation,  or  association  whatever,  or  to  raise 
money  for,  or  to  loan  its  credit  to,  or  in  aid  of  any  such 
company,  corporation,  or  association." 

This  restriction  plainly  cuts  off  the  power  to  authorize 
cities  to  loan  their  credit  to  railroad  companies  or  take 
Btock  in  them.    The  power  to  authorize  the  city  itself  to 


OINOIHNATI   aoUTBBRN   RAILWAY.  39 

construct  such  an  improvement,  however,  is  not  men- 
tioned. 

By  the  fourth  section  of  the  same  article,  it  is  provided, 
that  "the  credit  of  the  State  yhall  not,  in  any  manner? 
be  given  or  loaned  to,  or  in  aid  of,  any  indivi'luMl,  associ- 
ation, or  corporation  whatever,  nor  shall  the  S'ate  ever 
hereafter  become  a  joint  owner  or  stockholder  in  any  com- 
pany or  association  in  this  St.ito  or  elsewhere,  formed  for 
any   purpose  whatever." 

Prior  \o  the  adoption  of  the  constitution,  "it  was  com- 
petent for  the  Legislature,  under  the  constitution  of  1802, 
to  cons  ruct   works   of  improvement   on  behalf  of  the 
Sfcite,"  as  did  the  Ohio  canal,  '•  or  to  aid  iu  their  con- 
struction, by  subscribing  to  the  capital  stock  of  a  cor- 
poration for  that  purpose,"  as  it  did  in  the  case  of  the 
Cincinnati  and  Whitewater  Canal  Company,"  and  to  levy 
taxes  to  raise  the  means,  or  by  an  exercise  of  the  same 
power  to  authorize  a  county  or  township  to  subscribe  to 
a  work  of  that  character  running  through  or  into  such 
county  or  township,  and  to  levy  a  tax  to  pay  the  sub- 
scription," as  was  held  in  the  case  of  C.  \V.  (0  Z.  R.Ii. 
Compavy  vs.  Cliidon  County,  1  0.  S.  K.  R.,  77,  and 
S.  (t-  7.  li.  R.  Compmiy  vs.  Is'orik  T'nviiahlpy  1  0. 
S.  R.,  105;  also  several  other  cases,  as  1  O.  S.  R.,  153; 
2  0.  S.  R.,  G08 ;  7  0.  S.  R.,  327;  8  0.  S.  R.,  394 ;  14 
0.  S.  R.,  482,  479,  and  still  in  other  cases,  which  need 
not  be  cited,  but  which  leave  no  doubt  on  this  question, 
in  the  State  of  Ohio. 

Nothing  can  be  clearer  than  that  this  restriction  upon 
the  State  is  limited  to  its  loaning  its  credit  to  companies 
or  corporations,  and  to  its  "  becoming  a  stockholder  in 
any  company."     It  can  not  be  contended  that  the  pro- 


40  CtNCrWWATI   SOnTHP.RN   BATLWAT. 

vision  intended  to  prohibit  the  State  itself  from  accom- 
plishing directly,  "any  purpose  whatever."  The  extent 
of  the  restriction  is  that  the  State  ghall  neither  lend  its 
funds  to,  nor  become  a  member  of,  a  private  corporation 
for  any  purpose  whatever.  Its  power  to  make  necessary 
public  improvements  without  the  agency  of  corporations 
remains  as  it  was  before ;  and  what  it  was  before,  we  have 
seen,  was  not  doubtful. 

We  feel  bound  to  give  a  like  construction  to  the  sixth 
section,  which  applies  to  cities. 

They  can  not  be  authorized  now,  as  formerly,  to  lend 
their  funds  or  their  credit  to,  or  to  becon^e  members  of 
trading  corporations,  for  any  purpose  whatever.  But 
they  can  be  authorized  to  expend  their  own  funds  in 
making  necessary  public  improvements,  in  the  same  man- 
ner and  to  the  stime  extent  as  before  the  adoption  of  our 
present  constitution. 

In  our  opinion  it  follows  logically,  and  unavoidably, 
from  the  decisions  of  our  own  State,  and  indeed  from  the 
current  of  authorities  in  other  States,  that  these  acts  are 
constitutional.  Upon  a  careful  examination  of  our  present 
constitution  and  a  comparison  of  it  with  the  constitution 
of  1802,  and  the  adjudications  of  our  courts  under  it, 
the  case  appears  to  our  minds  clear  of  doubt. 

li,  however,  the  case  were  doubtful,  we  should  not  be 
justiGcd  in  pronouncing  the  acts  of  the  Legislature  void. 
The  presumption  must  always  be  in  favor  of  the  validity 
of  the  laws  enacted  by  the  State  Legislature,  if  the  con- 
trary is  not  clearly  demonstrated. 

The  incompatibility  must  be  clear,  to  warrant  the  set- 
ting aside  of  an  act  of  the  Legislature  duly  passed.  C. 
TF.  dcZ.  M,  H,  vs.  Commissioners  of  Clinton  county. 


CINCINNATI    SODTHERN   RAILWAY.  41 

1  0.  S.  R.  823;  Lehman  vs.  McBride,  15  0.  S.  R. 
591 ;  10  0.  R.  235 ;  11  0.  S.  R.  641. 

In  Lehman  vs.  McBride,  our  Supreme  Court  de- 
clared *'that  while  it  was  the  right  and  the  duty  of 
judicial  tribunals  to  give  full  force  and  effect  to  the  or- 
ganic law  of  the  State,  and,  therefore,  to  declare  null  and 
void  any  attempted  acts  of  legislation  which  contravene 
the  limitations  imposed  by  the  constitution  upon  Legis- 
lative power,  yet  such  judicial  interference  can  not  be 
justified  in  doubtful  cases." 

Such  is  the  uniform  current  of  judicial  authority.  Mr. 
Cooley,  in  his  work  on  Constitutional  Limitations,  lays 
down  the  same  rule,  pp.  87  and  88. 

It  was  said  in  the  case  of  Sharjyless  vs.  Philadelphia, 
21  Penn.  St.  R.  164,  which  arose  from  an  attempt  to 
resist  a  tax  levied  to  pay  a  railroad  subscription,  that  an 
act  resting  in  the  discretion  of  the  Legislature  will  be 
pronounced  void,  "only  when  it  violates  the  constitution, 
palpably,  plainly  and  in  such  a  manner  as  to  leave  no 
doubt  or  hesitation  in  our  minds. 

And  in  Cheney  vs.  Ilooser,  9  B.  Monroe,  345,  the 
Court  declared  that  a  "  tax  must  be  considered  valid,  un- 
less it  be  for  a  purpose  in  which  the  community  taxed 
has  palpably  no  interest" 

We  are  at  liberty  to  use  our  judgment  as  to  what 
is  judicious  for  the  State  to  enact,  or  for  the  people  of 
the  city  to  vote.  Can  we  assume  judicially  that  the 
people  of  this  city  have  no  interest  in  the  Southern  Rail- 
road, contrary  to  the  solemn  act  of  the  Legislature,  whose 
duty  it  was  to  pass  on  this  very  question,  and  contrary 
to  the  vote  of  the  people  ?  Is  this  a  case  in  which  we 
can  hold  that  the  State  Legislature  has  clearly  gone 
beyond  its  authority?     We  think  not. 


42  OINCINICATI    SOUTHSnir   BAILWAT. 

The  objection  has  been  suggested  that  the  Southern 
Railroad  is  to  extend  a  great  distance  from  Cincinnati, 
and  beyond  the  limits  of  the  State  of  Ohio.  The  objection 
is  plausible.  But  power  has  often  been  granted  to  cities 
to  operate  beyond  their  corporate  limits  in  order  to  secure 
something  essential  to  their  welfare.  The  city  of  New 
York  was  authorized  to  bring  the  water  of  the  Croton 
river,  a  distance  of  forty  miles,  at  a  cost  of  §11,000,000; 
nor  can  we  suppose  that  the  exercise  of  such  authority 
for  such  a  purpose  would  have  been  prevented,  if  the 
Croton  aqueduct  had  crossed  the  line  of  a  State. 

Cincinnati  has,  in  several  instances,  exercised  authority 
granted  by  the  Legislature  to  make  costly  improvements 
beyond  the  corporate  limits.  The  House  of  Refuge  was 
built  under  such  a  law.  The  Infirmary  was  beyond  its 
limits,  also  the  Work-house 

The  city  was  authorized  to  expend  funds  in  the  pur- 
chase of  stone  coal  in  the  mines  which  are  not  located 
within  the  corporation,  but  in  different  States,  "and  in 
all  the  necessary  agencies  for  the  procuring,  transporting, 
delivery  of  said  coal,"  to  the  city,  for  the  purpose  of  pro- 
tecting the  cities  against  exorbitant  prices  in  the  times 
of  scarcity. 

Cincinnati,  under  a  law  of  the  Legislature,  loaned  to 
the  Ohio  &  Mississippi  Railroad  Company,  whose  improve- 
ment lay  piincipally  beyond  and  outside  of  the  State  of 
Ohio,  a  large  sum  of  money,  and  afterwards  exchanged 
its  bonds  for  the  stock  of  the  company. 

Under  a  like  law  of  the  Legi!^lature,  the  city  of  Cincin- 
nati has  aire  idy  invested  §150,000  in  the  railroad  from 
Cincinnati  to  Lexington,  in  the  same  general  direction  as 
» that  contemplated  for  the  Southern  Railroad,  and  alto- 
gether outside  the  State  of  Ohio. 


CINCINNATI    SODTHERN   RAILWAY.  43 

If  there  were  a  lake  of  good  water  on  the  south  side 
of  the  Ohio  river,  and  if  the  Legislature  and  the  city 
itself  were  of  the  opinion  that  the  welfare  of  the  city- 
required  that  an  aqueduct  should  be  constructed  by  the 
city  to  draw  pure  and  wholesome  water  from  that  source, 
and  the  proper  legislation  were  had  in  Ohio  and  Kentucky, 
it  can  not  be  doubted  that  the  city  could  raise  the  money 
by  taxes  under  the  authority  of  such  legislation,  to  do 
the  work. 

The  fact  that  it  is  expected  that  the  Southern  Railroad 
will  extend  beyond  the  State  line  a  much  longer  distance, 
or  that  it  is  not  water  which  is  to  be  drawn  by  it  to  Cin.- 
cinnati,  does  not  change  the  principle.  We  do  not  say 
that  this  principle  could  not  be  so  abused  as  to  require 
the  interposition  of  the  judiciary  to  restrain  it.  But  we 
have  no  evidence  on  which  we  can  so  find  in  the  present 
case. 

The  opinion  of  Judge  Cooley  in  the  case  of  the  Peo- 
ple  vs.  Salem,  in  the  Supreme  Court  of  Michigan,  is 
not  inconsistent  with  the  decision  we  now  make.  That 
opinion  decided  that  the  levy  of  a  tax  to  raise  money  to 
give  to  a  railroad  company  either  by  loan,  or  by  subscrip- 
tion, to  the  capital  stock,  to  help  construct  its  road,  is  not 
a  proper  use  for  the  taxing  power,  because  it  is  giving 
the  public  fund  to  a  private  corporation.  9  Am.  Law 
Reg.  487. 

Ifc  has  no  applicatijn  to  a  case  where  the  miinicipal 
corporation  itself  constructs  a  public  work  essential  to. 
its  own  welfare,  as  the  learned  Judge  has  himself  declared 
in  an  opinion  published  since  that  decision,  in  which  he 
says  "  that  the  power  of  cities  in  Ohio  to  construct  works 
of  internal  improvement,  with  Legislative  permission,  has 


44  CfWCIXVATI   SOUTHCRH   RAILWAY. 

been  settled  by  judicial  decision,"  and  "that  there  is 
nothing  in  the  present  constitution  of  Ohio  designed  to 
prevent  the  local  authorities  from  levying  taxes  for  the 
construction  of  railroads  where  their  own  agencies  are 
employed  for  the  work." 

Indeed,  the  opinion  coincides  entirely  with  that  which 
we  have  expressed.  Nor  is  the  case  of  Whiting  ya.  The 
Sheboygan  Railroad  Company  in  the  Supreme  Court 
of  Wisconsin,  as  published  in  9  Am.  Law  Reg.  15G,  in 
conflict  with  our  opinion  as  now  announced. 

In  that  case,  Dixon,  Judge,  giving  the  opinion  of  the 
Court,  held  that  a  municipal  corporation  could  not,  under 
the  constitution  of  that  State,  loan  its  funds  to  a  raih*oad 
corporation,  although  he  expressed  the  opinion  that  it 
might  subscribe  to  the  capital  stock  of  the  company,  be- 
cause it  became  to  that  extent  owner  of  the  improvement, 
and  such  ownership  made  it  public  property. 

It  is  not  necessary  that  we  should  consider  any  such 
distinction.  But  we  may  add  that  we  have  found  no 
authority,  and  have  been  referred  to  none,  inconsistent 
with  the  principles  we  have  expressed. 

Upon  the  whole  case,  we  hold  that  "  the  act  relating  to 
cities  of  the  first  class,  having  a  population  exceeding  one 
hundred  and  fifty  thousand  inhabitants,"  passed  May  4, 
1869,  and  the  act  of  March  25,  1870,  supplementary 
thereto,  both  of  which  are  recited  in  the  petition,  are  con- 
stitutional and  valid — in  which  opinion  we  are  unanimous. 

Storer,  J. — It  might  be  supposed  in  a  case  of  so  much 
importance,  that- each  of  the  Judges  would  announce  an 
opinion ;  but  Judge  Taft  had  so  exhausted  the  subject, 
and  given  the  individual  views  of  his  associates  so  fully, 
combining  them  with  his  own,  that  it  is  scarcely  neces- 


CINCINNATI    SOUTHERN    RAILWAY.  45 

sary  they  should  do  more  than  to  subscribe  to  his  opin- 
ion. 

There  was  one  idea,  however,  it  might  be  proper  to  re- 
fer to  here,  by  the  way  of  illustration,  as  it  was  suggested 
when  the  case  was  before  the  judges  in  the  consultation 
room.  Suppose  it  was  necessary  to  build  a  bridge  across 
the  Ohio  river  at  this  point,  could  not  the  Legislature 
authorize  the  city  of  Cincinnati  to  build  it,  provided  the 
State  of  Kentucky  would  permit  the  abutments  on  that 
side  to  be  put  up  ?  It  did  not  appear  to  the  Court  there 
could  be  any  doubt  on  that  point 

Haoans,  p.,  J. — The  present  case  has  been  under  ad* 
visement  with  the  general  term,  since  the  month  of  Octo- 
ber ;  the  whole  subject  has  been  most  carefully  considered, 
in  view  of  the  magnitude  and  importance  of  the  questions 
involved,  as  well  as  the  discussion  of  them  that  has  been 
had,  not  only  before  the  Court  but  elsewhere.  The  result 
reached  is  entirely  satisfactory  to  each  member  of  the 
Court. 


IN   THE 


Supreme  Court  of  Ohio. 


l>JSCBMSBfi  TBUM,  f87f. 


Hon.  Josiah  Scott,  Chief  Justice,  and  Hon.  John  Welch, 
Hon.  William  White,  Hon.  Lliher  Day,  and  Hon. 
George  McIlvaine,  Judges. 

J.  Bbtant  Walkeb,  Solicitor  of  the  city  of  Cineinnati,  and  a  tax  payer 

of  said  city, 

rUdnliff, 

VERSUS 

The  City  of  Cincinnati,  Chab.  H.  Titos,  Auditor,  and  William  Hooper, 
Miles  Greenwood,  Richard  M.  Bishop,  Philip  Heidelbach  and  £.  A. 
Fergcson,  Trustees  of  the  Southern  Railway, 

De/endanU, 

KBROR   TO    THB    BUPEBIOR   COUBT   OF   CINCINNATI. 

1.  Courts  can  not  nuHify  an  act  of  Legislation  on  the  Tague  ground 
that  they  think  it  opposed  to  a  general  latent  spirit,  supposed  to  perrade 
or  underlie  the  constitution,  but  which  neither  its  terms  nor  its  implica- 
tions clearly  disclose. 

2.  It  is  well  settled  in  this  State,  by  repeated  adjudications,  that,  inde- 
pendent  of  constitutional  prohibitions,  it  is  within  the  legitimate  scope 
ef  legislative  power  to  authoriie  a  city  to  aid  in  the  construction  of  rail- 
roads or  other  public  improvements  in  which  such  city  hns  a  special 
interest,  and  to  impose  taxes  upon  its  citizens  for  that  purpose. 

3.  It  follows  that  it  is  equally  competent  for  the  Legislature  to  author- 
iie the  entire  construction  of  such  improvements  by  a  city  having  a  spe- 
cial interest  therein,  and  to  empower  the  local  authorities  to  provide  meana 
therefor  by  the  taxation  of  its  citisens. 

4.  Where  the  authority  given  is  to  construct  a  line  of  railroad  having 
one  of  its  termini  in  such  city,  it  does  not  affect  the  question  of  power, 
that  the  road  when  oonstruoted  will  lie  maiuly  outside  of  the  State  of 


CINCINNATI    SOUTHERN   RAILWAY.  47 

Ohio.  It  is  the  corporate  interest  of  the  municipftlity  which  determines 
her  right  of  taxation,  and  not  the  location  of  the  road,  which  may  well 
be  constructed  with  the  consent  of  the  State  into  or  through  which  it 
may  pass. 

6.  The  authority  and  duty  to  prevent  an  abuse  of  the  powers  of  taxa- 
tion and  assessment  by  municipal  corporations,  is  entrusted  by  the  con- 
stitution to  the  General  Agsembly,  and  not  to  the  courts  of  the  State. 
And'the  power  of  the  Legislature  to  authorize  local  taxation  can  not  be 
judicially  denied  on  the  ground  that  the  purpose  for  which  it  is  exercised 
is  not  local,  unless  the  absence  of  all  special  local  interest  is  clearly 
apparent. 

C.  The  act  of  the  General  Assembly  of  this  State,  passed  March  4,  1869, 
entitled  :  "  An  Act  relating  to  cities  of  the  first  class  having  a  population 
exceeding  one  hundred  and  fifty  thousand  inhabitants,"  is  not  in  conflict 
with  the  provisions  of  the  constitution  in  any  of  the  following  respects: 

The  conferring  of  authority  on  the  Judges  of  the  Superior  Court  of  Cin- 
cinnati, to  appoint  trustees  to  carry  out  the  purposes  of  the  act,  is  not  the 
exercise  of  an  appointing  power  by  the  General  Assembly,  which  article 
2,  section  27,  of  the  constitution  forbids.  It  is  not  the  creation  of  a  new 
office,  but  the  annexing  of  a  new  duty  to  an  existing  office. 

For  the  same  reason  it  is  not  in  conflict  with  article  4,  section  14,  which 
prohibits  Judges  of  the  Supreme  Court  and  the  Court  of  Common  Pleas 
from  holding  any  other  office  of  profit  or  trust  under  the  authority  of  this 
State  or  the  United  States.  The  duty  imposed  upon  the  Court  by  this  act 
is  of  a  judicial  character. 

Nor  does  the  act  conflict  with  article  2,  section  20,  of  the  constitution, 
which  requires  the  General  Assembly,  in  cases  not  provided  for  in  the 
constitution,  to  fix  the  term  of  office  and  the  compensation  of  all  officers. 
The  Trustees  for  whose  appointment  it  provides,  are  not  pub  ic  officers 
within  the  meaning  of  this  provision. 

And  finally  the  act  violates  neither  the  express  nor  clearly  implied  pro- 
hibitions of  article  8,  section  6,  which  debires :  "Tlie  General  Assembly 
shall  never  authorize  any  county,  city,  town  or  township,  by  vote  of  its 
citizens  or  otherwise,  to  become  a  stockholder  in  any  joint  stock  company, 
corporation,  or  association  whatever;  or  to  raise  money,  or  loan  its  credit 
to,  or  in  aid  of  any  such  company,  corporatiou  or  association." 


Messrs.  Stallo  &  Kittredqe,  and  Scribxeb  &  IIusd,  for  the  plaintiff. 

Messrs.  Henry  Stasbkry,  W.  B.  Caldwell,  Stanley  Matthews  &  E.  A. 
Feucuso.n,  for  the  de/endantt. 


48  OINCIITHATI    800THBRN    KAILWAT. 

OPINION  OF  THE  COURT.* 

Soorr,  C,  J. — The  question  presented  by  this  case  is 
as  to  the  constitutionality  and  validity  of  the  act  of  the 
General  Assembly  of  this  State,  passed  March  4th,  18G9, 
entitled  "An  act  relating  to  cities  of  the  first  class  hav- 
ing a  population  exceeding  one  hundred  and  fifty  thou- 
sand inhabitants." 

The  general  scope  and  purpose  of  the  act  is  to  au- 
thorize any  such  city  to  construct  a  line  of  railroad  lead- 
ing therefrom  to  any  other  terminus  in  this  State  or  in 
any  other  State,  through  the  agency  of  a  board  of  trus- 
tees consisting  of  five  persons,  to  be  appointed  by  the 
Superior  Court  of  such  city,  or  if  there  be  no  Superior 
Court,  then  by  the  Court  of  Common  Pleas  of  the  county 
in  which  such  city  is  situated.  The  enterprise  can  not, 
however,  be  undertaken  until  a  majority  of  the  City 
Council  shall,  by  resolution,  have  declared  such  line  of 
railway  to  be  essential  to  the  interest  of  the  city,  nor  un- 
til it  shall  have  received  the  sanction  of  a  majority  vote  of 
the  electors  of  the  city,  at  a  special  election,  to  be  ordered 
by  the  City  Council,  after  twenty  days'  public  notice. 

For  the  accomplishment  of  this  purpose,  the  Board  of 
Trustees  is  authorized  to  borrow  a  sum  not  exceeding  ten 
millions  of  dollars,  and  to  issue  bonds  therefor  in  the 
name  of  the  city,  which  shall  be  secured  by  a  mortgage 
on  the  line  of  railway  and  its  net  income,  and  by  the 
pledge  of  the  faith  of  the  city,  and  a  tax  to  be  annually 
levied  by  the  Council,  sufficient  with  such  net  income  to 
pay  the  interest  and  provide  a  sinking  fund  for  the  final 
redemption  of  the  bonds. 

*  Reported  in  21  Ohio  State  Reports,  p.  89. 


ClNCmNATI    SOUXnERN    RAILWAY.  49 

In  pursuance  of  the  authority  which  this  act  purports 
to  give,  the  City  Council  of  Cincinnati  has  resolved,  that 
it  is  essential  to  the  interests  of  that  city  that  a  line  of 
railway,  to  be  named  the  *'  Cincinnati  Southern  Railway," 
shall  be  provided  between  the  said  city  of  Cincinnati  and 
the  city  of  Chattanooga,  in  the  State  of  Tennessee ;  and 
this  action  of  the  council  has  been  endorsed  and  approved 
by  a  vote  of  more  than  ten  to  one  of  the  electors  of  the 
city,  at  an  election  duly  ordered  and  held  pursuant 
to  the  requirements  of  the  act.  But  fifteen  hundred  of 
the  electors  of  the  city  voted  against  the  proposed  pro- 
ject ;  and  the  grave  question  here  presented  on  behalf  of 
these  unwilling  electors  and  tax  payers,  is  whether  it  is 
within  the  power  of  the  State  Legislature  to  authorize 
the  taxation  of  their  property  by  the  municipality  lor  the 
purpose  of  constructing  such  a  line  of  railway,  by  the 
means  and  in  the  manner  prescribed  in  this  act. 

The  consequences  which  may  reasonably  be  expected  to 
result  from  the  exercise,  by  municipal  corporations,  of 
powers  such  as  this  act  purports  io  confer,  both  in  respect 
to  public  and  private  interests,  are  so  momentous  as  to 
,  make  it  difficult  to  overestimate  the  importance  of  the 
question ;  and  to  demand  at  our  hands  the  most  careful 
investigation  and  deliberate  consideration.  This  is  the 
first  instance,  in  the  history  of  the  State,  so  far  as 
we  are  aware,  in  which  the  General  Assembly  has 
undertaken  to  authorize  municipalities  to  embark  in 
the  business  of  constructing  railroads,  on  their  own 
sole  account,  as  local  improvements.  The  railway  con- 
templated in  this  instance,  is  several  hundred  miles  in 
length,  extending  into  other  States;  the  sum  authorized 
to  be  expended  in  its  construction  is  a  large  one,  and 


50  CINOINIfATI    80UTHRRN   RAILWAY. 

should  it  prove  inadequate  for  the  completion  of  the  road, 
we  may  reasonably  expect  it  will  be  increased  by  subse- 
quent legislation. 

These  considerations,  and  the  apparent  abuse  of  discre- 
tion involved  in  declaring  such  a  work  to  be  so  far  local 
in  its  character  as  to  justify  its  construction  by  a  single 
city,  at  the  sole  expense  of  its  citizens,  all  give  a  high 
degree  of  interest  to  the  question.  But  we  must  boar  in 
mind  that  the  question  is  one  of  legislative  power,  and 
not  of  the  wisdom,  or  even  of  the  justice  of  the  manner 
in  which  that  power,  if  it  exists,  has  been  exercised.  Had 
we  jurisdiction  to  pass  upon  the  latter  question,  we  should 
probably  have  no  hesitation  in  declaring  the  act  under 
review  to  be  an  abuse  of  the  taxing  power. 

Let  us  then  first  inquire,  under  what  conditions  it  be- 
comes competent  for  the  judiciary  to  declare  an  attempted 
act  of  legislation,  formerly  enacted  by  the  General  As- 
sembly, to  be  invalid  by  reason  of  unconstitutionality. 

Courts  can  not,  in  our  judgment,  nullify  an  act  of  leg- 
islation on  the  vague  ground  that  tbey  think  it  opposed 
to  a  general  "latent  spirit"  supposed  to  pervade  or  un- 
derlie the  constitution,  but  which  neither  its  terms  nor  its 
implications  clearly  disclose  in  any  of  its  parts.  To  do 
Fo  would  be  to  arrogate  the  power  of  making  the  consti- 
tution what  the  Court  may  think  it  ought  to  be,  instead 
of  simply  declaring  what  it  is.  The  exercise  of  such  a 
power  would  make  the  Court  sovereign  over  both  consti- 
tution and  people,  and  convert  their  government  into  a 
judicial  despotism.  Whilst  we  declare  that  legislative 
power  can  only  be  exercised  within  the  limits  prescribed 
by  the  constitution,  we  are  equally  bound  to  keep  within 
the  sphere  allotted  to  us  by  the  same  instrument.     On 


CINCINNATI    80DTHERN   RAILWAY.  51 

this  subject  we  can  not  do  better  than  to  adopt  what  is 
BO  well  said  by  Judge  Cooley,  in  his  treatise  on  "  Consti- 
tutional Limitations,"  pp.  128,  129,  where,  in  speaking 
of  limitations  upon  legislative  authority,  he  says: — 
"Some  of  these  are  prescribed  by  constitutions,  but 
others  spring  from  the  very  nature  of  free  government. 
Tlie  latter  must  depend  for  their  enforcement  upon 
legidaiive  wisdom,  discretion  and  conscience.  The 
Legislature  is  to  make  laws  for  the  public  good,  and  not 
for  the  benefit  of  individuals.  It  has  control  of  the 
public  moneys,  and  should  provide  for  disbursing  them 
for  public  purposes  only.  Taxes  should  only  be  levied 
for  those  purposes  which  properly  constitute  a  public 
burden.  But  what  is  for  the  public  good,  and  what  are 
public  purposes,  and  what  does  properly  constitute  a 
public  burden,  are  questions  which  the  Legislature 
must  decide  upon  its  own  judgment,  and  in  respect 
to  which  it  is  vested  with  a  large  discretion  which 
can  not  he  controlled  hy  the  courts,  except  perhaps 
where  its  action  is  clearly  evasive,  and  where,  under  pre- 
tense of  a  lawful  authority,  it  has  assumed  to  exercise 
one  that  is  unlawful.  Where  the  power  which  is  exer- 
cised is  legislative  in  its  character,  the  courts  can  enforce 
only  those  limitations  which  the  constitution  imposes, 
and  not  those  implied  restrictions,  which,  resting  in 
theory  only,  the  people  have  been  satisfied  to  leave  to 
the  judgment,  j)a^rio/i6'm,  and  sense  of  justice  of 
their  representatives.^^  And  he  adds  on  page  171: 
"Nor  are  the  courts  at  liberty  to  declare  an  act  void 
because,  in  their  opinion,  it  is  opposed  to  a  spirit  sup- 
posed to  pervade  the  constitution  but  not  expressed  in 
words ; " — citing  People  v.  Fisher,  24  Wend.  220  j  Coch- 


52  CINriNNATI    BOUTHRRH   RAILWAY. 

ran  v.  Van  Surlay,  20  Wend.,  381;  People  v.  Oal- 
lagheVf  4  Mich.  244 ;  Benson  v.  Mayor  of  Albany, 
24  Barb.  252;  Grant  v.  Courier,  24  Barb.  232; 
Wynehamer  v.  People,  13  N.  Y.  391. 

We  do  not  understand  it  to  be  claimed  that  the  act  in 
question  is  an  assumption  of  any  of  the  powers  specially 
delegated  to  the  general  government,  by  the  constitution 
of  the  United  States;  nor  that  it  is  an  encroachment 
upon  the  functions  and  powers  conferred  by  the  State 
constitution  on  other  departments  of  the  government, 
and  therefore,  impliedly  withheld  from  the  General 
Assembly.  The  only  questions,  therefore,  with  which 
we  have  to  deal,  are :  First,  whether  the  act  is  within  the 
general  grant  of  legislative  power  which  the  constitution 
declares  to  be  vested  in  the  General  Assembly;  and, 
Second.  Does  it  contravene  any  of  the  limitations  upon 
the  exercise  of  legislative  power,  which  are  either  ex- 
pressed or  clearly  implied  in  any  of  the  provisions  of 
that  instrument  ?  And  before  we  can  answer  the  former 
question  in  the  negative,  or  the  latter  in  the  affirmative, 
our  convictions  must  be  clear  and  free  from  doubt. 
Lehman  v.  McBride,  15  0.  St.,  291 ;  C,  W.  (f  Z  i?. 
li,  Co.,  V.  Commisidoners  Clinton  Co.,  1  0.  St,  77,  and 
authorities  there  cited. 

Let  us  then  consider,  first,  whether  this  act  is  within 
the  general  scope  of  legislative  power,  independent  of 
special  constitutional  prohibition. 

That  it  is  within  the  legitimate  scope  of  legislative 
power  to  authorize  a  municipality  of  the  State  to  aid  in 
the  construction  of  a  public  improvement  such  as  a  rail- 
road, by  becoming  a  stockholder  in  a  corporation 
created  for  that  purpose,  and  to  levy  taxes  to  pay  the 


CINCINNATI    80CTHERN   RAILWAY.  53 

subscription,  must  be  regarded  as  fully  settled  in. this 
State  by  repeated  adjudication.  In  the  case  of  C.  W. 
&  Z.  R.  H.  Co.  V.  Com.  of  Clinton  County,  1  0. 
St.,  77,  the  subject  was  very  fully  considered;  and  it  was 
held,  that  as  the  State  may  itself  construct  roads,  canals, 
and  other  descriptions  of  internal  improvement,  so  it  may 
employ  any  lawful  means  and  agencies  for  that  purpose, 
among  which  are  private  companies  incorporated  for  the 
construction  of  such  improvements.  And  it  was  said 
that,  for  much  stronger  reasons,  counties  might  be  au- 
thorized to  construct  works  of  a  similar  kind,  of  a  local 
character,  having  a  special  relation  to  their  business  and 
interests.  And  as  the  State  might  construct  or  authorize 
the  counties  to  construct  these  works  entire,  or  create  cor- 
porations to  do  it  entire,  it  was  held  that,  as  a  question 
of  power,  each  might  be  authorized  to  do  a  part. 

The  validity  of  subscriptions  to  the  stock  of  railroad  cor- 
porations, made  by  counties,  cities,  towns,  and  townships 
of  the  State,  under  special  legislative  authority,  has  been 
drawn  in  question  in  many  cases  which  have  since  came 
before  this  court,  and  in  none  of  them  has  the  authority 
of  the  Legislature  to  grant  such  power  of  subscription 
been  doubted.  1  0.  St.  105 ;  Id.  153 ;  2  0.  St.  607 ;  Id. 
647;  6  O.St. 280;  7  O.St.  327;  8  O.St. 394;  Id.  564; 
11  0.  St.  183;  12  0.  St.  596;  Id.  624;  14  0.  St.  260; 
Id.  472  ;  Id.  569. 

And  the  cases  in  which  such  legislative  authority  has 
been  upheld  by  the  courts  of  last  resort  in  other  States 
are  too  numerous  even  for  reference.  A  list  of  more 
than  fifty  of  such  cases  may  be  found  in  Judge  Cooley's 
treatise  before  referred  to,  p.  119,  note  4. 

If  we  even  admit  that  all  these  decisions  have  been 


54  ClKCiyMATI    800THRRN    RAILWAT. 

unwise,  yet  it  is  clearly  too  late  to  overrule  them  in  this 
Stiite.  Were  the  question  a  new  one,  and  properly  deter- 
minable by  the  judgment  of  a  court,  we  should  perhaps 
concur  in  opinion  with  Judge  Iledfield,  that  subscriptions 
for  railway  stock,  by  cities  and  towns,  do  not  come 
appropriately  within  the  range  of  municipal  powers  and 
duties.  Yet  he  is  constrained  to  add  that  "  the  weight 
of  authority  is  all  in  one  direction,  and  it  is  now  too  late 
to  bring  the  matter  into  serious  debate."  2.  Redf.  on 
Railways,  398,  399,  note.  And  if,  in  the  absence  of  con- 
stitutional prohibition,  a  municipal  corporation  may  be 
authorized  to  aid,  by  stock  subscriptions,  in  the  construc- 
tion of  a  rail;vay  which  has  a  special  relation  to  its  busi- 
ness and  interests ;  upon  what  principal  shall  we  deny 
that  it  can  be  authorized  to  construct  it  entirely  at  its 
own  expeuLie,  when  its  relation  is  such  as  to  render  it 
essential  to  the  business  interests  of  the  municipality? 
And  upon  the  question  of  fact  whether  a  particular  road 
is  thus  essential  to  the  interests  of  the  city,  this  Court  in 
the  case  of  the  C.  W.  &  Z.  R.  R.  alreaily  referred  to, 
quote  approvingly  from  the  case  of  Ooodin  v.  Crump 
8  Leigh,  R.  120,  in  which  it  was  said  :  "If  then  the 
test  of  the  corporate  character  of  the  act  is  the  probable 
benefit  of  it  to  the  community  within  the  corporation, 
who  is  the  proper  judge  whether  a  proposed  measure  is 
likely  to  conduce  to  the  public  interest  of  the  city  ?  Is 
it  this  Court,  whose  avocations  little  fit  it  for  such  inqui- 
ries? Or  is  it  the  mass  of  the  people  themselves^the 
majority  of  the  corporation,  acting  (as  they  must  do  if 
they  act  at  all)  under  the  sanction  of  the  legislative 
body  ?  The  latter,  assuredly."  And  in  8harpless  v. 
Mayor  of  Philadelphia^  21  Penn.  St.  R.  147,  it  was 


CINCINNATI    60UTHE;BN    RAILWAY.  55 

said  by  C  J.  Black,  "if  the  Legislature  may  create  a 
debt  and  lay  taxes  on  the  whole  people  to  pay  such  sub- 
scriptions, may  they  not  with  more  justice,  and  greater 
propriety,  and  with  as  clear  a  constitutional  right  allow 
a  particular  portion  of  the  people  to  tax  themselves, 
to  promote  in  a  similar  manner  a  public  work  in  which 
they  have  a  special  interest?     I  think  this  question  can 
*  not  be  answered  in  the  negative."  ....*'  I  can  not 
conceive  of  a  reason  for  doubting  that  what  the  State 
may  do  in  aid  of  a  work  of  general  utility,  may  be 
done  by  a  county  or  a  city,  for  a  similar  work,  which  is 
especially  useful  to  such  county  or  city,  provided  the  State 
refuses  to  do  it  herself,  and  permits  it  to  be  done  by  the 
local  authorities."     The  question  in  that  case  was  upon 
the  validity  of  subscriptions  of  stock  made  by  the  city  of 
Philadelphia  in  aid  of  two  railroads.     One  of  these  was  the 
Hempfield  road,  which  had  its  Eastern  terminus  at  Greens- 
burg,  three  hundred  and  forty-six  miles  west  of  Philadel- 
phia.   Both  subscriptions  were  sustained,  and  the  Court 
said,  "  It  is  the  iriter'est  of  the  city  which  determines  the 
right  to  tax  her  people.    That  interest  does  not  necessarily 
depend  on  the  mere  location  of  the  road."  .  .  .  "But  it  is 
not  our  business  to  determine  what  amount  of  interest 
Philadelphia  has  in  either  of  these  improvements.     That 
has  been  settled  by  her  own  officers  and  by  the  Legisla- 
ture.    For  us  it  is  enough  to  know  that  the  city  may 
have  a  public  interest  in  them,  and  that  there  is  not  a 
palpable  and  clear  absence  of  all  possible  interest  percepti- 
ble by  every  mind  at  the  first  blush.     All  beyond  that  is 
a  question  of  expediency  not  of  law,  much  less  of  con- 
stitutional law." 

By  the  act  under  consideration,  no  railroads  are  au- 


66  CIKCIMXATI   SODTHERN   RAILWAY. 

thorized  to  be  constructed,  except  such  as  have  one  of 
their  termini  in  the  city  which  constructs  them.  And 
that  a  city  has  no  peculiar  corporate  interest  in  such 
channels  of  commerce  as  lead  directly  into  it,  is  a  propo- 
sition which,  to  say  the  least,  is  very  far  from  being 
clearly  true.  And  as  the  public  or  corporate  interest  in 
an  improvement,  rather  than  its  particular  location,  deter- 
mines the  question  as  to  the  right  of  taxation  for  its  con- 
struction, the  fact  that  the  road  contemplated  in  the 
present  case  will  lie  mainly  outside  of  this  State,  can  make 
no  difference.  The  right  of  eminent  domain  can  not  be 
exercised,  nor  the  road  constructed  in  or  through  other 
States,  without  their  permission  and  authority ;  and  the 
act  in  question  contemplates  nothing  of  the  kind.  But 
when  such  consent  is  given,  we  suppose  the  particular 
direction  given  to  the  road  can  have  no  bearing  on  the 
question  of  corporate  power  to  constmct  it. 

It  is  also  to  be  borne  in  mind,  that  this  is  not  a  case 
in  which  the  L  egislature  has  determined  a  particular  public 
improvement  to  be  of  a  local  character,  and  has  imposed 
the  burden  of  its  construction  on  an  unwilling  munici- 
pality. But  it  is  the  case  of  an  authority  given  to  a  city 
to  exercise  its  powers  of  taxation  only  for  the  construc- 
tion of  an  improvement  which  the  local  authorities  have 
declared  to  be  essential  to  the  interest  of  the  city,  and 
even  that  can  not  be  done  till  a  majority  of  its  people 
have  sanctioned  the  measure  by  their  deliberate  votes. 

The  towns  and  cities  of  the  State  are  not  the  creations 
of  the  constitution.  It  recognizes  these  municipalities 
as  existing  organizations,  properly  invested  by  immemo- 
rial usage  with  powers  of  assessment  and  taxation  for 
local  purposes  of  a  public  character,  but  which  were  nev- 


CINCINNATI    SOUTHERN   RAILWAY.  57 

erthelss  subject  to  control  and  regulation  by  the  State, 
and  that  these  powers  might  be  abused  unless  properly- 
restricted.  The  constitution  itself  provides  where  the 
power  of  preventing  such  abuse  shall  be  vested.  It  de- 
clares, in  article  13,  section  6,  that  the  "General  As- 
sembly shall  provide  for  the  organization  of  cities  and 
incorporated  villages,  by  general  laws,  and  restrict  their 
power  of  taxation,  assessment,  borrowing  money,  contract- 
ing debts,  and  loaning  their  credit  so  as  to  prevent  the 
abuse  of  such  power."  It  is  very  clear,  that  this  consti- 
tutional mandate  can  not  be  enforced  according  to  judi- 
cial discretion  and  judgment.  In  the  very  nature  of  the 
case,  the  power  which  is  to  impose  restrictions  so  as  to 
prevent  abuse,  must  determine  what  is  an  abuse,  and  what 
restrictions  are  necessary  and  proper.  As  is  said  by  the 
learned  author  from  whose  treatise  we  have  before  quoted: 
"  The  moment  a  court  ventures  to  substitute  its  own  judg- 
ment for  that  of  the  Legislature,  in  any  case  where  the 
constitution  has  vested  the  Legislature  with  power  over 
the  subject,  that  moment  it  enters  upon  a  field  where  it  is 
impossible  to  set  limits  to  its  authority,  and  where  its  dis- 
cretion alone  will  measure  the  extent  of  its  interference. 
The  rule  of  law  upon  this  subject  appears  to  be,  that  except 
where  the  constitution  has  imposed  limits  upon  the  legis- 
lative power,  it  must  be  considered  as  practically  absolute, 
whether  it  operate  according  to  natural  justice  or  not  in 
any  particular  case.  Tlie  courts  are  not  the  guardians  of 
the  rights  of  the  people  of  the  State,  except  as  those 
rights  are  secured  by  some  constitutional  provision,  which 
comes  within  the  judicial  cognizance.  The  protection 
against  unwise  or  oppressive  legislation,  within  constitu- 
tional bounds,  is  by  an  appeal  to  the  justice  and  patriot* 
5 


68  CINCINNATI    flOUTHRRtr    RAILWAY. 

ism  of  the  representatives  of  the  people.  If  this  fliil, 
the  people  in  their  sovereign  capacity  can  correct  the  evil ; 
bnt  courts  can  not  assume  their  rights  "  Cooley's  Const. 
Lim.,  1G7,  168. 

We  do  not  mean  to  say  that  every  legislative  enact- 
ment is  necessarily  valid  unless  it  conflict  with  some  ex- 
press provision  of  the  constitution.  Undoubtedly,  the 
General  Assembly  can  not  divest  A.  of  his  title  to  prop- 
erty and  give  it  to  B.  They  can  not  exercise  judicial 
functions.  They  can  impose  taxes  only  for  a  public  pur- 
pese.  For  it  is  of  the  essence  of  a  tax  that  it  be  for  a 
public  use.  Nor  can  they  by  way  of  taxation  impose 
a  burden  upon  a  portion  of  the  State  only,  for  a  purpose 
in  which  that  portion  of  the  State  has  no  possible  pecu- 
liar local  interest.  But  to  justify  the  interference  of  a 
court  upon  any  of  these  grounds,  the  case  must  be 
brought  clearly,  and  beyond  doubt,  within  the  category 
claimed ;  and  such  we  are  persuaded  is  not  the  case  in 
respect  to  the  act  in  question. 

We  have  been  referred  to  recent  adjudications  in  several 
States,  which  are  supposed  to  sustain  the  claim  that  taxa- 
tion can  not  be  authorized  for  the  construction  of  a  rail- 
road in  cases  like  the  present.  In  the  case  of  Whiting 
vs.  Sheboygan  Railway  Co.,  9  American  Law  Reg* 
156,  it  was  held  that  "a  statute  levying  a  tax  for  the  sole 
purpose  of  making  a  direct  gift  of  the  money  raised  to  a 
mere  private  railway  in  which  the  State  or  tax  payers 
have  no  ownership,  is  unconstitutional."  The  case, 
from  Michigan,  of  The  People  ex  rel.  The  Detroit 
<jb  Howell  B.  R.  Co.,  vs.  Towiisliip  of  Salem,  pro- 
ceeds upon  the  same  grounds.  But  in  the  case  now 
before  us,  the  road  is  the  property  of  the  tax  payers  who 


CINCIKKATl    SOUTHERN   RAILWAY.  59 

furnish  the  means  to  build  it.  The  recent  decisions  in 
Iowa  are  in  conflict  with  the  former  unif)rm  line  of  deci- 
sions on  the  subject  in  the  same  State,  and  in  all  the  cases 
referred  to  in  either  of  those  States,  the  reasoning  upon 
which  the  decisions  rests,  is  in  conflict  with  what  we  can 
not  but  regard  as  the  settled  law  of  this  State. 

We  are  brought  to  the  conclusion  that  there  is  nothing 
in  the  general  purport  and  main  object  of  this  act,  which 
places  it  outside  of  the  sphere  of  legitimate  legislative 
power. 

We  proceed  to  consider  whether  it  is  in  conflict  with 
any  of  the  express  limitations  imposed  by  the  constitu- 
tion. 

It  is  claimed  that  the  General  Assembly,  in  the  act 
in  question,  by  authorizing  the  Judges  of  the  Superior 
Court  to  appoint  trustees  of  the  contemplated  railway, 
have  exercised  an  appointing  power  which  is  forbidden 
by  the  27th  section  of  the  2d  article  of  the  consti- 
tution. The  argument  is,  that  the  trustees  whom  the 
act  authorizes  the  Court  to  appoint,  are  public  officers; 
that  their  appointment  is  not  the  exercise  of  a  judicial 
function,  or  of  any  power  that  can  be  conferred  on  th& 
Judges  of  the  Court  as  such;  and  that  the  conferring  of 
this  power  of  appointment  is  the  creation  of  a  new  and 
independent  office,  which  can  not  be  filled  by  the  appoint- 
ment of  the  Legislature,  whether  the  appointee  be  desig- 
nated by  name,  or  by  reference  to  another  office  which 
he  holds.  In  the  same  connection  it  is  claimed  that  this 
power  of  appointment  is  conferred  on  the  Judges  of  the 
Superior  Court  in  violation  of  art.  4,  sec.  14,  of  the  con- 
stitution, which  prohibits  the  Judges  of  the  Supreme 
Court  and  the  Court  of  Common  Pleas  from  holding  any 


60  CINCINNATI    80UTRRRN   RAILWAY. 

other  office  of  profit  or  trust  under  the  authority  of  this 
State  or  tlie  United  States ;  and  it  is  further  argued  that 
the  act  is  in  conflict  with  art.  2,  sec.  20,  of  the  constitu- 
tion, because  it  does  not  fix  the  term  of  office  and  com- 
pensation of  the  trustees.  Are  any  of  these  positions 
clearly  well  taken? 

We  shall  first  inquire  whether  the  power  of  appoint- 
ment conferred  by  this  act  on  the  Judges  of  the  Superior 
Court  involves  the  exercise  of  an  appointing  power  by  the 
General  Assembly.  Were  the  judges  thereby  apfjointed  to 
a  public  office  ?  In  support  of  the  affirmative  of  this  ques- 
tion we  are  referred  to  the  decision  of  this  Court  in  the 
case  of  The  State  on  relation  of  The  Attorney  Gen- 
eral vs.  Kennon,  et  al.,  7  0.  St.  R.  546.  In  that  case  it 
was  held  that  the  selection  and  designation  by  name  of^ 
the  defendants,  by  the  General  Assembly,  to  exercise 
continuously,  and  as  a  part  of  the  regular  and  permanent 
administration  of  the  government,  important  public 
powers,  trusts  and  duties,  is  an  appointment  to  office. 
But  we  think  the  present  case  can  not  be  brought  within 
the  principle  of  that  decision.  In  this  case,  there  is  no 
designation  of  individuals  by  name  to  exercise  any  pub- 
lic functions  whatever.  It  is  clearly  the  case  of  an  addi- 
tional power  or  duty  annexed  to  existing  offices,  and  not 
the  creation  of  a  new  office.  Upon  the  filing  of  a  peti- 
tion by  the  City  Solicitor  in  the  Superior  Court,  praying 
for  the  appointment  of  trustees,  it  is  made  the  duty  of 
the  Judges  of  that  Court  to  make  such  appointment,  and 
to  enter  the  same  on  the  minutes  of  their  Court.  The 
power  of  appointment  and  of  subsequent  removal  for  un- 
faithfulness, can  be  exercised  only  by  the  Court f  as  stick; 
and  all  power  of  control  in  the  premises  on  the  part  of 


CINCINNATI    SODTHERN   RAILWAY.  61 

the  Judges  ceases  with  the  termination  of  their  judicial 
offices.  It  is  true  that  the  act  confers  a  new  power  on  the 
Judges  of  the  Superior  Court,  but,  as  was  said  by  Judge 
Swan,  in  his  concurring  opinion  in  the  case  referred  to, 
"if  adding  to  the  duties  or  powers  of  existing  offices  is 
an  exercise  of  the  appointing  power,  then  every  new  duty 
required  or  power  conferred  upon  any  State,  county,  or 
township  officer,  must  be  deemed  the  exercise  by  the 
General  Assembly  of  the  appointing  power,  and  forbid- 
den by  the  constitution."  r 

But  it  is  said  that  the  appointment  of  these  trustees 
is  not  the  exercise  of  a  judicial  function.  Suppose  this 
to  be  so.  Does  it  follow  that  no  functions  except  such  as 
are  purely  judicial,  can  be  constitutionally  annexed  to 
the  office  of  a  judge  ?  Can  judges  not  be  made  conserva- 
tors of  the  peace,  and,  as  such,  be  required  to  discharge 
duties  which  are  not  of  a  judicial  character?  If  no 
power  of  appointment  to  any  officio  or  position  of  pubHc 
trust  can  be  developed  upon  a  court  or  judge,  it  is  certain 
that  many  of  the  statutes  of  this  State  are  invalid.  Quite 
a  number  of  statutes  have  been  referred  to  by  connsel,  in 
which  such  power  of  appointment  is  given  to  Probate 
Judges,  Judges  of  the  Court  of  Common  Pleas,  and 
Judges  of  the  Superior  Court. 

But  is  it  clear  that  the  selection  and  appointment  of 
these  trustees  which  the  act  requires  to  be  made  by 
the  Judges  of  the  Superior  Court,  and  to  be  entered  on 
the  minutes  of  the  Court,  is  in  no  sense  a  judicial  act? 
It  is  the  act  of  a  Court,  and  the  selection  of  the  trustees, 
and  the  fixing  of  the  amount  of  their  bonds,  require  the 
exercise  of  judgment  and  discretion.  Authorities  are 
not  wanting  to  show  that  such  an  act  is  properly  judicial 


62  OIXCINNATI    SODTHBRK   RAILWAY. 

in  its  character.  Thus,  where  a  statute  of  New  York 
authorized  a  town  to  issue  honds  to  aid  in  the  construc- 
tion of  a  railroad,  and  made  it  the  duty  of  the  County 
Judge  to  appoint,  under  his  hand  and  seal,  three  com- 
missioners to  carry  into  eflect  the  purposes  of  the  act, 
it  was  held  by  the  Supreme  Court  of  that  State  that 
the  act  of  making  such  appointment  was  judicial.  It 
was  stiid  by  the  Court :  "  The  action  sought  from  the 
County  Judge  is  judicial.  It  is  conferred  by  the  statute 
upon  the  office  of  County  Judge,  to  be  exercised  under  its 
seal.  The  duty  requires  the  exercise  of  judgment  and 
discretion  in  the  selection  of  commissioners.  The  indi- 
vidual is  in  no  way  responsible  for  any  acts  of  those  he 
may  select  in  the  discharge  of  their  duties.  In  no  sense 
is  the  act  of  selecting  commissioners  ministerial.  They 
do  not  act  on  the  command  of  the  County  Judge ;  he  is- 
sues no  process  to  them.  If,  after  yppointment,  the  per- 
sons designated  accept  and  act,  they  do  so  under  and  by 
virtue  of  the  statute,  and  not  in  virtue  of  the  order  de- 
signating them  as  commissioners."  Sweet  vs.  Ilulbert, 
51  Barb.  S.  C.  Rep.  315. 

Nor  do  we  think  that  these  tmstees  are  officers  within 
the  meaning  of  that  clause  of  the  constitution  which  pro- 
vides that  "  the  General  Assembly,  in  cases  not  provided 
for  in  this  constitution,  shall  fix  the  term  of  office,  and 
the  compensation  of  all  officers."  This  clause  can  not  be 
regarded  as  comprehending  more  than  such  offices  as 
may  be  created  to  aid  in  the  permanent  administration  of 
the  government.  It  can  not  include  all  the  ag<  nciea 
which  the  General  Assembly  may  authorize  municipal 
and  other  corporations  to  employ  for  local  and  tempo^ 
rary  purposes.     These  Trustees  have  no  connection  with 


CINCINNATI    SOUTHERN   KAILWAY. 


63 


the  government  of  the  State,  or  any  of  its  subdivisions. 
They  have  nothing  to  do  with  the  general  protection  and 
security  of  persons  or  property.  Their  sole  duty  is  to 
procure  and  superintend  the  construction  of  a  particular 
road,  and  to  lease  it  when  constructed.  When  this  shall 
have  'been  done,  so  far  as  appeals  from  the  act,  their  func- 
tions end ;  and  in  the  road,  when  constructed,  the  State  will 
will  have  no  proprietary  interest.  All  the  railroads  of  the 
State,  though  owned  and  operated  by  private  corporations, 
are,  in  an  important  sense,  public  improvements ;  yet  the 
officers  who  manage  them,  and  superintend  their  pecu- 
niary interests,  are  not  public  officers  within  the  meaning 
of  this  constitutional  provision.  No  one  supposes  that 
the  compensation  of  such  officers  must  be*  fixed  by  the 
Legislature. 

It  remains  to  consider,  with  reference  to  the  general 
purpose  and  object  of  the  act,  whether  there  are  in  the 
constitution  special  limitations  on  the  general  legislative 
power  vested  in  the  General  Assembly,  which  prohibit 
the  nuthorizing  of  a  city  to  raise,  by  taxation  of  its  citi- 
zens, the  means  for  constructing  a  railroad  leading  into 
such  city,  when  such  an  improvement  is  deemed  by  a 
majority  of  the  citizens  to  be  essential  to  its  interests. 
It  is  claimed  that  the  grant  of  such  authority  is  in 
violation  of  article  8,  section  0,  of  the  constitution,  which 
reads  as  follows :  "  The  General  Assembly  shall  never 
authorize  any  county^  city,  town,  or  township,  by  vote  of 
its  citizens  or  otherwise,  to  become  a  stockholder  in  any 
joint  stock  company,  corporation,  or  association  what- 
ever ;  or  to  raise  money  for,  or  loan  its  credit  to  or  in  aid 
of,  any  such  company,  corporation,  or  association." 

It  is  proper  to  consider  this  section  in  connection  with 


64  OINCIXKATI   8O0THRRV   RAILWAY. 

the  sections  which  precede  it  in  the  same  article,  and  with 
some  provisions  fouiul  in  other  articles  which  bear  more 
or  less  directly  upon  the  same  and  kindred  subjects. 

The  first  two  sections  of  this  article  enumerate  the 
purposes  for  which  the  Sbite  may  contract  debts,  and 
the  third  section  declares  that,  except  the  debts  thus 
specified,  "no  debt  whatever  shall  hereafter  be  created  by 
or  on  behalf  of  the  State."  The  fourth  section  declares 
that  **the  credit  of  the  State  shall  not,  in  any  manner, 
be  given  or  loaned  to,  or  in  aid  of,  any  individual,  associ- 
ation, or  corporation  whatever;  nor  shall  the  State  ever 
hereafter  become  a  joint  owner  or  stockholder  in  any 
company  or  association,  in  this  State  or  elsewhere,  formed 
for  any  purpose  whatever."  The  fifth  section  forbids  the 
assumption  by  the  State  of  the  debts  of  any  county, 
city,  town,  or  township,  or  of  any  corporation  whatever, 
unless  such  debts  shall  have  been  created  to  repel  in- 
Tasion,  suppress  insurrection,  or  defend  the  State  in  war. 
In  art  1 2,  sec.  6,  it  is  declared,  "  the  State  shall  never 
contract  any  debt  for  purposes  of  internal  improvement" 
And  art  1 3,  sec.  G,  provides  as  follows :  "  The  General 
Assembly  shall  provide  for  the  organization  of  cities  and 
incorporated  villages  by  general  laws,  and  restrict  their 
powers  of  taxation,  assessment,  borrowing  money,  con- 
tracting debts  and  loaning  their  credit,  so  as  to  prevent 
the  abuse  of  such  power." 

In  Cass  vs.  Dillon^  2  0.  St.  Rep.  613,  614,  it 
was  held,  and  we  think  properly,  that  the  limitations 
imposed  upon  the  State  by  the  first  three  sections  of 
art.  8,  were  not  intended  as  limitations  upon  her  politi- 
cal subdivisions — her  counties  and  townships.  And 
the  clear  implications  of   the  fifth    section  are,   that 


CINCINNATI   SOUTHEnN    RAILWAY.  65 

counties,  cities,  towns,  and  townships  may  create  debts 
to  repel  invasion,  suppress  insurrection,  or  defend  the 
State  in  war,  which  the  State  may  assume;  and  may 
also  create  debts  for  other  purposes,  which  the  State  is 
forbidden  to  assume.  By  the  fourth  section,  a  limitation 
is  imposed  in  respect  to  the  State,  similar  to  that  prescribed 
in  the  sixth  section,  in  regard  to  counties,  cities,  towns,  and 
townships.  The  State,  and  her  municipalities  and  subdi- 
visions are  clearly  distinguished,  and  treated  of  separately. 
It  is  to  the  latter  that  the  inhibitions  of  the  sixth  section 
relate.  What  are  the  extent  and  purport  of  those  inhibi- 
tions ?  Its  own  language  must  furnish  the  answer  to  this 
question,  if  that  language  be  plain  and  unambiguous.  Of 
course,  I  do  not  mean  that  we  are  bound  to  adhere  strictly 
to  the  letter,  without  regard  to  the  evident  meaning  and 
spirit  of  the  instrument.  The  fundamental  law  of  the  State 
is  to  be  construed  in  no  such  narrow  and  illiberal  spirit. 
On  the  contrary  it  is  to  be  consti'ued  according  to  its  inten- 
tion, where  that  is  clear ;  and  that  which  clearly  falls  w  ithin 
the  reason  of  the  prohibition  may  be  regarded  as  em- 
bodied in  it.  Still,  it  is  very  clear  that  we  have  no  power  to 
amend  the  constitution,  under  the  color  of  construction,  by 
interpolating  provisions  not  suggested  by  the  language  of 
any  part  of  it.  We  can  not  supply  all  omissions,  which 
we  may  believe  have  arisen  from  inadvertence  on  the  part 
of  the  constitutional  convention.  Recurring  then  to  the 
language  of  this  section,  it  is  quite  evident,  that  it  was 
not  intended  to  prohibit  the  construction  of  railroads ;  nor, 
indeed,  to  prohibit  any  species  of  public  improvements. 

The  section  contains  no  direct  reference  to  railroads, 
nor  to  any  other  special  classes  of  improvements  or  enter- 
prises.   Its  inhibitions  are  directed  only  against  a  parti cu- 


66  OIKCINKATI    tOOTHBRH   BAILWAT. 

lar  manner  or  means  by  which,  under  the  constitution  of 
1802,  many  public  improvements  have  been  accomplished. 
And  its  language  is  suiriciently  comprehen"^ivo  to  embrace 
every  enterprise  involving  the  expenditure  of  muney, 
and  the  creation  of  pecuniary  liabilities.  Under  the  con- 
stitution of  1802,  numerous  special  acts  of  legislation 
had  authorized  counties,  cities,  towns,  and  townships,  to 
become  stockholders  in  private  corporations,  organized 
for  the  construction  of  railroads,  to  be  owned  and  ope- 
rated by  such  corporations.  The  stock  thus  subscribed 
by  the  local  authorities  was  generally  authorized  to  be  paid 
for  by  the  issue  of  bonds,  which  were  to  be  paid  by  taxes 
assessed  upon  the  property  of  their  constituent  bodies. 
Many  of  these  enterprises  proved  unprofitable,  and  the 
stock  became  valueless.  Some  of  them  wholly  failed. 
Heavy  taxation  followed  to  meet  and  discharge  the  inte- 
rest and  principal  of  the  bonds  thus  issued.  Towns  and 
townships  were  induced  to  attempt  repudiation  of  their 
contracts.  And,  as  the  records  of  this  Court  abundantly 
show,  the  assessment  and  collection  of  the  taxes,  which  the 
preservation  of  good  faith  required,  had  repeatedly  to  be 
enforced  by  mandamus.  In  many,  if  not  all  of  thase  eases, 
it  was  alleged  that  the  stock  subscriptions  sought  to  be 
enforced  had  been  voted  for  and  made  under  the  influ- 
ence of  false  and  fraudulent  representations  made  by  in- 
terested officers  and  agents  of  the  corporation  to  be  aided 
by  the  subscription.  At  the  time  of  the  formation  and 
adoption  of  the  present  constitution  these  evils  had  begun 
to  be  seriously  felt,  and  excited  the  gravest  apprehensions 
of  calamitous  results.  Under  such  circumstances  this  sec- 
tion was  made  a  part  of  the  State  constitution.  It  may  be 
well  again  to  recur  to  its  language :  "  The  General  Assem- 


CINCINNATI    SODTHERN   RAILWAY.  67 

bly  shall  never  authorize  any  county,  city.,  town  or  town- 
sliip,  by  vote  of  its  citizens  or  otherwise,  to  become  a  stock- 
holder in  any  joint  stock  company,  corporation,  or  associa- 
ciation  whatever ;  or  to  raise  money  for,  or  loan  its  credit 
to,  or  in  aid  of,  any  such  company,  corporation  or  associa- 
tion." The  mischief  which  this  section  interdicts  is  a  busi- 
ness partnership  between  a  municipality  or  subdivision  of 
the  State,  and  individuals  or  private  corporations  or  asso- 
ciations. It  forbids  the  union  of  public  and  private  capi- 
tal or  credit  in  any  enterprise  whatever.  In  no  project 
originated  by  individuals,  whether  associated  or  other- 
wise, with  a  view  to  gain,  are  the  municipal  bodies  named 
permitted  to  participate  in  such  manner  as  to  incur 
pecuniary  expense  or  liability.  They  may  neither 
become  stockholders  nor  furnish  money  or  credit  for  the 
benefit  of  the  parties  interested  therein.  Though  joint 
stock  companies,  corporations  and  associations  only  are 
named,  we  do  not  doubt  that  the  reason  of  the  prohibi- 
tion would  render  it  applicable  to  the  case  of  a  single 
individual.  The  evil  would  be  the  same,  whether  the 
public  suffered  from  the  cupidity  of  a  single  person,  or 
from  that  of  several  persons  associated  together. 

As  this  alliance  between  public  and  private  interests 
is  clearly  prohibited  in  respect  to  all  enterprises  of  what- 
ever kind,  if  we  hold  that  these  municipal  bodies  can  not  do 
on  their  own  account,  what  they  are  forbidden  to  do  on 
the  joint  account  of  themselves  and  private  partners,  it 
follows  that  they  are  powerless  to  make  any  improve- 
ment, however  necessary,  with  their  own  means,  and  on 
their  own  sole  account.  We  may  be  very  sure  that  a 
purpose  so  unreasonable  was  never  entertained  by  the 
framers  of  the  constitution. 


68  CINCINNATI    BOUTHRRN    RAILWAY. 

Besides,  if  this  section  is  to  be  construed  so  as  to 
prohibit  municipal  corporations  from  making  improve- 
ments on  their  own  account,  and  with  their  own  means, 
then  the  fourth  section  of  this  same  article,  which  is 
quite  similar  in  language,  must  be  held  to  prohibit  the 
making  of  any  improvements  by  the  State  on  her  own 
account,  and  with  her  own  means.  This  would  not  only 
be  highly  unreasonable,  but  would  conflict  with  the  clear 
implications  of  the  section  which  prohibits  the  Sbite  from 
contracting  any  debt  for  purposes  of  internal  improve- 
ment. This  implies  that  the  State  may  make  all  such 
improvements  as  will  not  involve  the  creation  of  a  debt. 

We  find  ourselves  unable  therefore,  upon  any  estab- 
lished rules  of  construction  to  find  in  this  section  the  inhi- 
bition claimed  by  Council  to  arise  by  implication.  It  may 
be,  and  indeed  I  think  it  very  probable,  that  had  the 
framers  of  the  constitution  contemplated  the  possibility 
of  a  grant  to  a  municipal  corporation  of  such  powers  as 
the  acts  under  consideration  confer,  they  would  have 
interposed  further  limitations  upon  legislative  discretion. 
But  omissions  of  such  a  grave  character  surely  can  not 
be  supplied  according  to  the  conjectures  of  a  court. 

It  is  argued,  however,  that  the  Trustees  of  the  contem- 
plated railway  are  a  corporation,  and  that  the  act  in  ques- 
tion violates  the  terms  of  this  section,  by  authorizing  the 
city  to  raise  money  for  and  loan  its  credit  to  this  corpo- 
ration, to  enable  it  to  construct  a  railroad.  We  think  it 
unnecessary  to  inquire  whether  the  trustees  provided  for 
by  the  act  are  in  any  sense  a  corporation  or  not.  For  if 
they  are  an  association  or  organization  of  any  kind  what- 
ever, having  a  property  interest  in  the  road  distinct  from 
that  of  the  city,  then  the  objection  is  well  taken.    The 


CINCINNATI    SODTHERN    KAILWAT.  69 

inhibitions  of  this  section  are  not  directed  against  names. 
But  it  is  clear  that  the  Trustees  are  a  mere  agency 
through  which  the  city  is  authorized  to  operate  for  her 
own  sole  benefit.  Neither  as  individuals  nor  as  a  board 
have  they  any  beneficial  interest  in  the  fund  which  they 
are  to  manage,  or  in  the  road  which  they  are  to  build. 
They  are  in  fact,  as  well  as  in  name,  but  trustees, 
and  the  sole  beneficiary  of  the  trust  is  the  city  of  Cin- 
cinnati. They  are  authorized  to  act  only  in  the  name 
and  on  behalf  of  the  city.  Looking,  therefore,  to  the 
substance  of  things,  this  case  can  not  be  brought  within 
the  terms  of  the  prohibition,  unless  we  are  to  regard  the 
city  itself  as  being  one  of  the  corporations  for  which 
money  is  not  to  be  raised,  nor  a  loan  of  credit  made. 

We  do  not  understand  counsel  as  relying  upon  any 
other  ground  of  objection  to  the  validity  of  this  act 
than  those  which  we  have  considered,  and  are  of  opinion 
that  the  judgment  of  the  Court  below  must  be  affirmed. 

Welch,  White,  Day  and  McIlvaine,  JJ.,  concurred. 


70  OIKOINMATI   80UTHERK   RAILWAY. 

IN  TUE  SUPREME  COURT  OF  OUIO. 

Deoember  Term,  1872. 

Hon.  William  Whits,  Chief  Juslioe,  and  Hox.  Lctmkr  Dat,  Eon.  Oboboi 
W.  McIlvaimb,  Uoh.  John  Wklcu,  and  Hon.  Walter  F.  Stomb,  Judges. 

Jamrs  Tatlob  bt  al.  v.  Tub  Commissionbbs  op  Ross  Codntt. 
Appeal  reserved  in  the  District  Court  of  Ross  county. 

Marti.v  Kantner  v.  Thb  Tbdstbbs  op  Douchooqcet  Township,  Auolaisb 

COUNTT. 

Error  to  the  Court  of  Common  Pleas  of  Auglaise  Coantj. 


,^^^L^  OPINION  OF  THE  COURT*  3^^ 


C^^  Tuesday,  May  18,  1878 


White — C.  J. : — These  two  cases  were  argued  at  the 
same  time,  and  they  have  been  considered  and  will  be  dis- 
posed of  together,  as  they  both  involve  the  question  of 
the  constitutionality  of  the  act  of  April  23^  1872,  to  au- 
thorize counties,  townships,  and  the  municipalities  therein 
named  to  build  railroads,  etc.,  69,  0.  L.,  8-4. 

It  is  claimed  by  the  counsel  seeking  to  maintain  these 
proceedings  under  the  act  named,  that  the  question  as  to 
its  validity  has  already,  in  effect,  been  determined  in  the 
case  of  Walker  vs.  The  City  of  Cincinnati  et.  al,  21 
0.  L.  II.,  15. 

The  act  passed  upon  in  that  case  is  widely  different 
from  the  one  now  before  us.  The  latter  contains  pro- 
visions and  elements  not  found  in  the  former.  That  act 
authorized  a  railroad  to  be  built  by  a  municipality,  when 
it  was  found  to  be  essential  to  its  interest,  as  one  of  its 
public  works.     It  was  to  be  used  and  operated  as  other 

*  Reported  in  28  Ohio  State  Reports,  p.  76. 


CINCINNATI    SOUTHERN    RAILWAY, 


works  of  a  public  nature  ia  which  it  had  a  special  inter- 
est, and  which  it  was  authorized  to  own  and  operate. 

In  the  case  referred  to,  of  Walker  v.  The  Cify  of 
Cincifinatij  the  Court  held  that  it  was  competent  for  the- 
Legislature,  under  the  general  grant  of  legislative  power, 
to  authorize  the  entire  construction  of  such  a  work  by  a 
municipality  having  a  special  interest  therein,  and  to  em- 
power the  local  authorities  to  provide  the  means  therefor 
by  taxation.  And,  further,  that  a  work  thus  constructed 
was  neither  in  violation  of  the  express  nor  the  clearly 
imi)lied  prohibitions  of  article  8,  section  6,  of  the  consti- 
tution. That  the  construction  of  the  work  in  this  manner, 
however  unwise  it  might  be,  did  not  involve  the  union 
of  public  and  private  capital  or  credit,  nor  the  raising  of 
money  by  the  municipality  for,  or  loaning  its  credit  to, 
or  in  aid  of  other  parties,  incorporate  or  otherwise. 
That  this  is  as  true  in  regard  to  railroads  so  constructed, 
as  it  is  in  regard  to  water  works,  gas  works,  and  other  im- 
provements of  a  similar  nature  which  the  municipalities 
may  Qpnstruct,  but  which  require  the  employment  of 
skill  and  labor  to  make  them  available  for  public  use. 

It  is  true  that  in  the  act  passed  upon  in  Walker  vs. 
The  City,  etc.,  authority  is  given  the  Trustees  as  fast  as 
portions  of  the  line  of  road  of  which  they  are  Trustees, 
are  completed,  to  rent  or  lease  the  right  to  use  and 
operate  such  portions  upon  such  terms  as  they  may  deem 
best  j  but  such  rights  are  to  cease  and  determine  on  the 
final  completion  of  the  whole  line,  when  the  right  to  use 
and  operate  the  same  is  to  be  leased  by  them  to  such 
person  or  company  as  will  conform  to  the  terms  and  con- 
ditions which  shall  be  fixed  and  'provided  by  the  Council 
of  the  city  by  which  the  line  of  road  is  owned. 


72  CINCINNATI    80UTIIKRN   RAILWAY. 

This  power  can  not  be  exercised  until  after  tha  work  is 
completed,  except  for  the  purpose  of  getting  the  imme- 
diate use  of  the  finished  portion  during  the  time  required 
to  complete  the  entire  work.  The  proprietary  interest 
in  the  road  when  completed,  is  as  fully  in  the  munici- 
pality as  that  of  any  other  of  i*.s  public  works.  It  is  the 
road  "otr/tCfZ"  by  the  municipality  that  is  authorized  to 
be  leased.  The  public  use  for  which  the  road  was  built, 
is  to  be  preserved,  and  the  power  of  leasing  the  right  to 
use  and  operate  it,  is  designed  only  as  a  mode  of  making 
such  use  available  to  the  public.  If,  under  color  of  this 
authority,  it  should  be  attempted  to  divert  the  work  from 
the  purposes  for  which  it  was  authorized,  and  to  subordi- 
nate the  public  to  private  interests,  the  attempt  would  be 
unwarranted  and  the  courts  would  be  open  to  prevent  or 
redress  the  wrong. 

Every  step  in  the  public  service  requires  compensa- 
tion, whether  it  be  in  discharging  the  duties  of  oilice,  or 
in  preserving  and  keeping  in  order,  so  as  to  be  available 
for  public  use,  all  description  of  public  property.  Com- 
pensation for  services  is  as  necessary  as  compensation  for 
property. 

The  constitution  does  not  forbid  the  employment  of 
corporations,  or  individuals,  associate  or  otherwise,  as 
agents  to  perform  public  services ;  nor  does  it  prescribe 
the  mode  of  their  compensation.  And  if  it  should  be 
deemed  wise  and  economical  to  authorize  municipalities, 
who  own  water  works  or  gas  works,  to  lease  them  as  a 
means,  of  supplying  the  public  needs,  we  know  of  no  con- 
stitutional impediment 

But  this  is  a  diflerent  thing  from  investing  public 
money  in  the  enterprises  of  others,  or  from  aiding  them 


OINCINUATI   SOUTHERN  RAILWAY.  73 

with  money  or  credit.  In  one  case  the  whole  proprietary 
interest  is  in  the  public,  and  its  authority  is  paramount ; 
while  in  the  other,  the  reverse  is  true. 

Whether  or  not  the  act  now  before  us  can  be  justified 
under  the  decision  referred  to,  will  appear  from  an  exami- 
nation of  the  provisions  of  the  act. 

Its  validity  is  denied,  on  the  ground  that  it  violates 
section  6,  article  8,  of  the  constitution.  That  provision 
is  as  follows: 

"The  General  Assembly  shall  never  autliorize  any 
county,  city,  town,  or  township,  by  vote  of  its  citizens  or 
otherwise,  to  become  a  stockholder  in  any  joint  stock 
company,  corporation,  or  association  whatever;  or  to  raise 
money  for,  or  loan  its  credit  to,  or  in  aid  of,  any  such 
company,  corporation,  or  association." 

It  is  but  applying  an  axiom,  to  say  that  what  the  Gen- 
eral Assembly  is  thus  prohibited  from  doing  directly,  it 
has  no  power  to  do  indirectly. 

In  giving  an  exposition  of  this  section,  in  Walker  vs. 
The  City,  etc.,  it  is  said  in  the  opinion : 

"  The  mischief  which  this  section  interdicts  is  a  busi- 
ness partnership  between  a  municipality  or  subdivision  of 
the  State,  and  individuals  or  private  corporations  or  as- 
sociations. It  forbids  the  union  of  public  and  private 
capital,  or  credit  in  any  enterprise  whatever.  In  no  pro- 
ject originated  by  individuals,  whether  associated  or 
otherwise,  with  a  view  to  gain,  are  the  municipal  bodies 
permitted  to  participate  in  such  manner  as  to  incur  pe- 
cuniary liability.  They  can  neither  become  stockholders, 
nor  furnish  money  or  credit  for  the  benefit  of  parties 
interested  therein.  Though  joint  stock  companies,  cor- 
porations, and  associations  only  are  named,  we  do  not 

6 


74  CINCINNATI   SOUTHERN  RAILWAT. 

doubt  that  the  reason  of  the  prohibition  would  render  it 
applicable  to  the  case  of  a  single  individual." 

And  it  was  truly  said  the  evil  would  be  the  same  to  the 
public,  whether  the  transaction  was  with  a  single  person, 
or  with  several  persons  associated  together. 

The  first  section  of  the  act  now  in  question,  declares 
that  it  shall  be  lawful  for  any  county  to  construct  a  rail- 
road, and  to  borrow  as  a  fund  for  that  purpose,  a  sum  not 
exceeding  five  per  cent,  on  its  taxable  property,  as  two- 
thirds  of  the  electors  of  the  county  voting  at  a  meeting 
called  for  that  purpose  shall  determine.  Section  12 
extends  the  provisions  of  the  act  to  cities,  incorporated 
villages  Hud  townships. 

The  following  is  substantially  the  method  or  scheme 
prescribed  for  accomplishing  this  object :  On  presenta- 
tion of  a  written  request,  signed  by  the  specified  number 
of  tax  paying  electors,  containing  a  specification  of  the 
termini  of  the  proposed  road,  the  amount  to  be  appro- 
priated toward  its  construction,  and  such  other  condi- 
tions and  particulars  as  are  not  provided  for  in  the  act, 
the  commissioners  are  required  to  call  an  election  at  which 
the  electors  are  to  vote  on  the  proposition  contained  in  the 
request.  If  the  result  of  the  election  should  be  to  ap- 
prove the  proposition,  the  commissioners  are  required  to 
issue  the  bonds  of  the  county  for  the  amount  authorized. 
For  the  payment  of  these  bonds  the  credit  of  the  county 
is  pledged.  They  are  to  become  due  in  not  exceeding 
twenty  years  and  are  to  bear  interest  not  exceeding  eight 
per  cent,  per  annum,  and  are  to  be  deposited  with  the 
Treasurer  of  State  for  the  benefit  of  the  parties  interested. 

The  Commissioners  are  also  required  within  thirty  days 
after  the  proposition  has  been  approved  at  the  elec- 
tion, to  advertise  for  proposals  for  the  construction  of  the 


CINCINNATI    80DTHERN   RAILWAY.  76 

work ;  but  the  time  of  letting  it  is  not  to  exceed  sixty- 
days.  When  the  time  of  letting  comes,  the  act  requires 
that  the  Commissioners  "  shall  enter  into  contract  with 
the  lowest  responsible  bidder  for  the  whole  of  said  road, 
or  with  the  party  that  will  agree  to  build  the  greatest 
number  of  miles  of  road  for  the  sum  appropriated." 

The  Commissioners  are  invested  with  no  discretion. 
It  is  made  their  imperative  duty  to  enter  into  the  con- 
tract :  if  no  one  will  undertake  to  buiM  the  whole  road 
for  the  bonds,  they  must  let  the  work  to  the  party  who 
will  agree  to  take  them  and  build  the  greatest  number  of 
miles.  No  provision  is  made  for  securing  the  right  of 
way  to  the  county,  township,  or  municipality,  on  which 
the  public  money  is  to  be  expended.  The  bonds  are  only 
to  be  used  in  the  payment  of  "  labor  performed  and  ma- 
terial furnished  during  the  previous  month,  in  pursuance 
of  the  contract,"  except  that  fifteen  per  cent,  is  authori- 
zed to  be  reserved  until  the  contract  is  performed. 

The  contract  is  to  be  entered  into  and  the  bonds  ex- 
pended without  respect  to  the  character  of  the  work,  or 
what  it  may  cost  to  complete  it,  or  make  it  of  public 
utility.  Whether  the  public  money  be  much  or  little,  or 
the  work  to  be  expensive  or  otherwise,  in  all  cases  alike, 
the  amount  is  to  be  expended.  What  the  expenditure 
may  result  in,  is  all  the  county,  township,  or  municipality 
gets,  upon  the  hypothesis  that  it  was  the  intention  of  the 
act  to  authorise  these  local  bodies,  respectively,  to  build 
a  railroad  as  one  of  its  local  public  works,  it  is  clear  that 
such  could  not  have  been  the  intention  of  the  Legislature, 
nor  can  it  be  the  understanding  of  the  voters  who  act 
under  it 

While  a  railroad  constructed  and  operated  is  a  public 
highway  of  the  greatest  utility,  yet  it  is  of  a  peculiar 


76  CIMCINITATI   SOCTUBRN   RAILWAT. 

nature.  It  is  the  means  of  accomplishing,  with  greatly 
iDcreased  facility,  the  results  designed  to  be  accomplished 
by  other  descriptionp  of  highways.  As  an  agency  to  serve 
this  purpose  it  can  not,  however,  be  viewed  in  the  same 
light  as  ordinary  highways. 

A  railroad  can  be  made  subservient  to  the  public,  only 
under  conditions  entirely  different  from  those  of  the  com- 
mon highway.  It  must  be  in  a  condition  to  be  operated. 
A  part  of  a  railroad  which  is  not  in  a  condition  to  be 
used,  can  not,  while  it  remains  in  such  condition,  be  said  to 
be  a  highway  or  to  serve  any  public  purpose.  To  be  availa- 
ble as  a  public  way  it  must  be  capable  of  being  operated 
by  motive  power  and  cars  under  the  direction  of  a  single 
management. 

But  the  tenth  section  is  a  constituent  part  of  the  plan 
or  method  provided  by  the  act  for  accomplishing  its 
object.  That  section  provides  that  the  "County  Com- 
missioners shall  have  power,  and  they  are  hereby  authori- 
zed to  lease  said  road,  constructed  under  the  provisions 
of  this  act  hefore  or  after  completion,  *  *  *  or  to 
sell  the  same  for  such  compensation  and  upon  such  terms 
as  may  be  agreed  upon  by  said  Commissioners  and  lessee 
or  purchaser." 

There  is  a  proviso  declaring  that  no  such  contract 
of  lease  or  sale  shall  be  valid  unlil  the  same  is  ratified 
by  a  majority  of  the  electors  voting  at  an  election  called 
for  the  purpose.  This  proviso  has  no  bearing  upon  the 
question  as  to  the  authority  of  the  Legislature  to  pass  the 
act.  Whether  valid  or  invalid,  its  validity  can  be  neither 
impaired  nor  its  invalidity  aided  by  those  acting  under  it 

Thus,  by  section  ten,  it  appears  the  Commissioners  or 
other  public  authorities  operating  under  the  act,  are  in- 
vested with  authoritv  to  sell  or  lease  the  road  either 


CINCINNATI   BOUTDERN   RAILWAY.  77 

"before  or  after  completion.  It  would  be  within  their 
power  to  sell  what  is  called  the  road  at  any  time ;  certainly 
after  the  making  of  the  contract.  Now,  in  such  case,  what 
is  sold  ?  Substantially  the  right  to  use  tlte  public  bonds  to 
construct  a  work  which  becomes  the  property  of  the  pur- 
chaser as  fast  as  it  is  built.  What  is  to  be  paid  for  the 
right  thus  sold,  is  to  be  left  to  the  discretion  of  the 
local  authorities.  It  may  be  paid  for  by  completing 
the  work.  Indeed,  the  amendator}?-  act  expressly  declares 
that  the  consideration  of  the  sale  or  lease  may  be  the 
construction  of  the  road. 

This  is,  in  effect,  the  same  as  if  the  purchaser  had 
projected  the  road  to  be  built  on  his  own  account,  and 
the  local  authorities  had  agreed  to  aid  him  to  the  amount 
of  the  bonds. 

The  act  contains  no  provision  requiring  the  road,  after 
the  public  funds  have  been  expended,  to  be  completed. 
Nor  in  case  of  sale  is  there  any  provision  requiring  it  to 
be  maintained  and  operated.  In  the  absence  of  such  a 
provision,  neither  railroad  companies,  nor  others  owning 
railroads,  can  be  required  to  maintain  and  operate  them. 
2  Redfield  on  Railways,  sec.  191 ;  18  Eng.  L.  &  Eq.  199 ; 
26  Wis.  207. 

But  if  the  public  money  should  be  expended  before  the 
making  of  the  lease  or  sale,  the  public  authorities  are,  by 
the  act,  put,  we  might  almost  say,  in  complete  subordination 
to  the  railroad  company,  or  parties  owning  or  controlling 
the  other  parts  which  are  to  make  up  the  whole  road. 
To  everybody  else  it  will  be  as  useless  as  to  the  county 
or  township  whose  money  built  it.  If  leased  or  sold  at 
all,  it  will  necessarily  be  to  the  parties  or  company  who 
control  such  other  parts.  The  local  authorities,  under 
the  act,  have  no  alternative  but  to  let  the  work  perish  in 


78  CIROIMNATI   SODTHCRN   RAILWAY. 

its  incomplete  state,  or  lease  or  sell  it  on  such  terms  as 
the  parties  named  are  willing  to  accept. 

If  a  line  of  road  is  projected  through  several  townships 
or  counties,  no  concert  of  action  is  contemplated.  The 
leasing  or  selling  of  the  part  which  may  be  constructed 
by  the  funds  of  one  locality,  is  wholly  independent  of  the 
action  of  the  other  localities.  The  company  that  gets 
one  link  in  the  line,  can  control  or  defeat  the  whole. 

The  transaction  which  the  statute  authorizes,  begins 
with  a  railroad  projected  in  the  name  of  one  of  the  locali- 
ties mentioned,  to  be  built  in  part  by  taxation,  and  ends 
with  a  debt  on  the  locality  for  its  construction,  and,  if 
anything  useful  has  been  accomplished,  with  the  road 
being  substantially  owned  by  a  railroad  company,  to  be 
operated  or  not,  or  disposed  of  as  such  company  may 
find  most  for  its  interest. 

This  is  accomplishing  by  indirection  what  it  would  be 
a  plain  violation  of  an  express  provision  of  the  constitu- 
tion to  do  directly. 

Where  public  credit  or  money  is  furnished,  to  be  used 
in  part  construction  of  a  work,  which,  under  the  statute 
authorizing  its  construction,  must  be  completed,  if  com- 
pleted at  all,  by  other  parties  out  of  their  own  means, 
who  are  to  own  pr  have  the  beneficial  control  and  man- 
agement of  the  work  when  completed,  the  public  money 
or  credit  thus  used,  can  only  be  regarded,  within  the  mean- 
ing of  the  constitutional  provision  in  question,  as  fur- 
nished for,  or  in  aid  of  such  parties. 

The  extent  of  such  aid  can  make  no  difference.  The 
mandate  of  the  constitution  is,  that  such  aids  shall  never 
be  authorized.  Whatever  is  furnished  must  be  exacted 
by  taxation ;  and  whether  the  amount  be  large  or  small, 
fco  recognize  the  authority  under  which  it  is  sought  to  be 


OIKCIKNATI   SOUTHERN   RAILWAY.  79 

imposed,  would  be  to  deny  the  protection  guaranteed  by 
the  constitution  to  every  tax-payer. 

Nor  will  it  do  to  say  that  the  public  money  may  be 
expended,  and  the  road  be  neither  leased  nor  sold.  Taxes 
can  be  levied  only  for  public  purposes.  The  mere  expen- 
diture of  the  amount  of  public  money  authorized  to  be 
raised  in  building  so  much  of  a  railroad  as  could  be  built 
for  that  sum,  without  any  authority  to  complete  it  or  use 
it,  could  serve  no  public  purpose. 

Nor  is  this  the  case  contended  for  in  argument,  of 
an  act  which  is  susceptible  of  two  constructions,  one  of 
which  would  make  it  constitutional  and  the  other  not. 
We  find  this  act  capable  of  no  other  rational  construction 
than  the  one  we  have  given  it. 

Neither  can  we  assent  to  the  proposition  that,  although 
the  act  may  authorize  the  accomphshing  of  an  unconsti- 
tutional purpose,  that  it  must,  nevertheless,  be  presumed 
that  it  will,  in  fact,  only  be  used  to  accomplish  what  can 
be  done  in  accordance  with  the  constitution. 

The  authority  which  it  confers,  clearly  includes  the  un- 
constitutional purpose  of  aiding  with  the  public  credit, 
railroad  companies  and  others  engaged  in  the  business  of 
building  and  operating  railroads.  If  there  are  lawful 
purposes  to  which  the  credit  might  be  applied,  the  act 
gives  no  means  to  the  officers  in  whom  the  authority 
is  vested,  of  discriminating  between  what  is  lawful  and 
what  is  not.  This  unconstitutional  element  vitiates  the 
whole  authority. 

It  is  not  the  case  of  a  separate  and  independent  un- 
constitutional provision  in  a  statute  which  may  be 
rejected,  and  yet  the  rest  of  the  act  be  allowed  to  stand 
and  have  effect  according  to  the  legislative  intention.    On 


80  CINCINVATI   BODTHERir  RAILWAY. 

the  contrary,  the  unconstitutional  element  constitutes  an 
inherent  and  essential  part  of  the  authority  conferred. 

Private  property,  except  when  taken  for  public  pur- 
poses, or  by  legitimate  taxation,  is  as  inviolable  as  per- 
sonal liberty.  If  an  act  of  the  legislature  should  author- 
ize a  magistrate,  for  such  cause  as  he  might  see  proper, 
to  order  the  arrest  and  imprisonment  of  a  citizen,  the 
act  could  not  be  upheld  on  the  ground  that  it  was  to  be 
presumed  the  magistrate  would  exercise  the  authority 
only  for  legal  and  constitutional  causes  of  arrest.  The 
authority  in  the  case  supposed  would  be  entire,  and  the 
act  wholly  void.  The  principle  is  the  same  in  regard  to 
the  act  now  under  consideration. 

The  tenth  section,  in  which  the  authority  to  sell  or 
lease  is  found,  can  not  be  disregarded  in  determining  the 
validity  of  the  act ;  for  without  that  section  it  can  not  be 
presumed  the  act  would  have  either  been  passed  by  the 
legislature  or  acted  on  by  the  people.  The  section  con- 
stitutes a  necessary  part  of  the  plan  or  scheme  for  accom- 
plishing the  objects  intended  by  the  act.  Monroe  et  al. 
V.  Collins,  17  Ohio  St.  G66,  684. 

The  Court  are  unanimous  in  the  opinion  that  the  act  is 
in  conflict  with  section  6,  article  8,  of  the  constitution, 
and  therefore  void. 

It  may  be  that,  without  the  aid  of  this  law,  projects 
may  fail,  which  could,  under  it,  have  been  prosecuted  to 
successful  and  useful  results.  But  this  consideration  can 
have  no  influence  in  a  judicial  tribunal  invested  with  the 
high  trust  of  seeing,  in  the  administration  of  justice,  that 
the  constitution  suflers  no  detriment,  from  whatever  quar- 
ter or  in  whatever  shape  the  threatened  invasion  comes. 

It  has  not  been  found  necessary  to  pass  upon  the  other 
grounds  of  objection  made  to  the  act. 

In  the  case  of  Kantner  v.  The  Trustees^  etc.,  the 
judgment  of  the  Court  below  will  be  reversed ;  and  a  per- 
petual injunction  is  ordered  by  this  Court  in  each  case. 


THE    TENNESSEE    ACTS 

Authorizing  Construction  of  the  Road. 


Ji^  ACT  to  atithorize  the  extension  and  construction  of  the 
Cincinnati  Southet^n  'Railway  ffitfiin  the  State  of  Tennessee. 


\ViiERFAS,  It  is  represented  to  this  General  Assembly 
that  Miles  Greenwood,  Richard  JNI.  Bishop,  William 
Hooper,  Philip  Ileidelbach,  and  Edward  A.  Ferguson^ 
of  the  city  of  Cincinnati,  in  the  State  of  Ohio,  were  ap- 
pointed,  under  and  by  virtue  of  an  act  of  the  General  As- 
sembly of  the  State  of  Ohio,  passed  on  the  fourth  day  of 
May,  in  the  year  eighteen  hundred  and  sixty-nine,  a 
Board  of  Trustees,  with  authority  to  borrow  a  fund  not  to 
exceed  the  sum  of  ten  millions  of  dollars,  and  to  issu& 
bonds  therefor  in  the  name  of  the  city  of  Cincinnati,  un  • 
der  the  corporate  seal  thereof,  of  which  said  fund  the  said 
Miles  Greenwood,  Richard  M.  Bishop,  William  Hooper, 
Philip  Heideibach,  and  Edward  A.  Ferguson,  and  their 
successors,  are  to  be  Trustees,  with  power  to  expend  the 
same  in  procuring  the  right  to  construct,  and  in  con- 
structing, a  single  or  double-track  railway,  with  all  the 
usual  appendages,  including  a  line  of  telegraph,  between 
the  said  city  of  Cincinnati  and  the  city  of  Chattanooga, 
in  the  State  of  Tennessee,  to  be  called  and  known  as  the 
"  Cincinnati  Southern  Railway ; "  and  with  power  and  ca- 
pacity for  the  purposes  aforesaid,  to  make  contracts^  ap- 
point, employ,  and  pay  officers  and  agents,  and  to  acquire,, 
hold,  and  possess  all  the  necessary  real  and  personal 
7 


82  CIHCIMNATI    SODTBKEir   BiltLWAT. 

property  and  franchises,  either  in  the  said  State  of  Ohio  or 
in  any  other  State  into  which  the  said  line  of  railway  may 
extend,  and  with  other  powers  in  said  act  expressed ;  and 
whereas,  the  said  line  of  railway  cannot  be  constructed, 
Dor  the  powers  of  the  said  Board  of  Trustees  be  exercised 
within  the  State  of  Tennessee,  without  the  consent  of  the 
General  Assembly  thereof;  therefore, 

Sectiom  1.  Be  it  enacted  by  the  General  Assembly 
of  the  State  of  Tennessee^  That  the  said  Board  of 
Trustees,  namely :  Miles  Greenwood,  Richard  M.  Bishop, 
William  Hooper,  Philip  Heidelbach,  and  Edward  A  Fer- 
guson, and  their  successors,  by  the  name  of  the  "  Trustees 
of  the  Cincinnati  Southern  Railway,"  be,  and  they  are 
hereby  authorized  to  extend,  construct,  and  maintain, 
within  the  State  of  Tennessee,  the  said  line  of  railway, 
with  a  single  or  double  track,  with  all  the  usual  appenda- 
ges, including  a  line  of  telegraph,  and  to  exercise  the 
powers  vested  in  them  under  and  by  virtue  of  said  act  of 
the  General  Assembly  of  the  State  of  Ohio,  subject  to  the 
provisions  and  restrictions  in  this  act  provided. 

Sec.  2.  Be  it  further  enacted,  For  the  purpose  of  ex- 
amining and  surveying  routes  for  the  said  line  of  railway, 
the  said  Trustees  may,  subject  to  the  provisions  of  section 
13151  of  the  code,  enter  upon  any  land  in  the  counties  of 
Claiborne,  Campbell,  Union,  Knox,  Anderson,  Blount, 
Roane,  Monroe,  McMinn,  Meigs,  Bradley,  Hamilton,  Rhea, 
Cumberland,  Morgan,  Scott,  Fentress,  Overton,  Putnam, 
White,  Van  Buren,  Bledsoe,  Sequatchie,  Marion,  Grundy, 
Warren,  DeKalb  and  Jackson,  and  select  from  the  routes 
80  examined  and  surveved  a  route  for  the  same,  commenc- 
ing at  a  point  within  the  city  of  Chattanooga  to  be  select- 
ed by  said  Trustees ;  and  running  through  either  of  said 


CINCINNATI    SOUTHEnN    RAILWAY,  83 

counties,  to  the  northern  boundary  line  of  this  State,  so 
as  to  connect  with  the  same  line  of  railway  in  the  Com- 
monwealth of  Kentucky.  A  copy  of  the  survey  and 
location  of  such  route,  and  any  alteration  therein,  shall 
be  filed  in  the  Register's  office  of  the  counties  through 
which  the  said  railway  runs,  within  one  year  after  such 
location  or  alteration. 

Sec.  3.  Be  it  further  enacted^  For  the  purpose  of 
constructing  and  maintaining  said  line  of  railway  and  its 
appendages,  the  said  Trustees  may : 

1.  Acquire  by  purchase  or  gift  and  hold  any  land  in 
the  vicinity  of  or  through  which  the  route  selected  by 
them  may  pass. 

2.  Occupy  or  use  any  turnpike  road,  street  or  other  pub- 
lic way  or  ground,  or  any  part  thereof,  upon  such  terms 
and  conditions  as  may  be  agreed  upon  between  said  Trus- 
tees, and  the  municipal  or  other  corporation,  persons,  or 
public  authorities,  owning  or  having  charge  thereof;  and 
in  case  it  shall  be  necessary  to  provide  a  new  road, 
street,  or  other  ground,  in  place  of  that  so  used  or  occu- 
pied, to  acquire  the  necessary  land  and  cause  the  neces- 
sary improvements  to  be  made  thereon. 

3.  If  the  lands,  the  said  Trustees  may  deem  necessary 
or  convenient,  cannot  be  acquired  as  aforesaid,  or  if  n« 
agreement  can  be  made  for  the  right  to  use  or  occupy 
any  road,  street .  or  ground,  that  may  be  necessary,  the 
said  Trustees  may  take  and  appropriate  the  said  lands  or 
rights  in  the  manner  provided  in  the  code  for  taking 
private  property  for  woi  ks  of  internal  improvement ;  and 
the  Court  may  fix  such  terms  and  conditions  in  the  case 
of  roads,  streets  and  public  grounds,  as  may  be  deemed 
best  for  the  public  interest  j  Provided,  that  no  appropria- 


84  CI5CIKNATI   SOUTHERK  KAILWAT. 

tion  for  tlie  right  of  way  shall  be  of  a  greater  width 
than  two  hiiiulnul  feet ;  and  provided  further,  that  the 
lights  of  the  land  owners  shall  not  be  divested  until  the 
sjiid  Trustees  shall  fully  satisfy  the  judgments  reeov«  red 
in  their  favor,  or  amounts  or  terms  agi-eed  upon  for  said 
right  of  way. 

}?EC.  4.  Be  it  further  enacted,  If,  during  the  con- 
struction or  after  the  completion  of  sjiid  line  of  rail- 
way, it  shall  be  found  necessary  by  said  Trustees  to 
change  the  location  or  grades,  or  to  substitute  other 
works  or  conveniences  for  those  originally  designed  or 
constructed,  or  to  provide  additional  side  tracks  or 
other  appendages  for  the  proper  management  and  opera- 
tion of  said  railway,  the  said  Trustees  may  make 
such  changes  and  provide  such  additional  appendages^ 
not  departing  from  the  general  route  originally  selected 
by  them;  and,  for  the  purposes  afore&iid,  may  ac- 
quire or  enter  upon,  take  and  appropriate  such  lands  or 
rights,  as  may  be  necessary,  in  the  mode  Lereinaf.er  pre- 
scribed. 

Sec.  5«.  Be  it  further  enactedy  Whenever,  along  the 
route  selected  by  said  Trustees,  there  shall  bs  a  railroad 
already  constructed,  or  rights  of  way,  or  depot  or  other 
grounds  acquired  therefor,  which  railroid,  rights  of  way 
or  grounds,  can  be  adopted  as  part  of  the  said  line,  it 
shall  be  lawful  for  the  persons,  company  or  corporation 
owning  the  same,  to  sell  to  the  said  Trustees  the  said 
railroad,  rights  of  way,  or  grounds,  or  any  part  thereof, 
upon  such  terms  and  conditions  as  may  be  agreed  upon 
between  the  said  Trustees  and  such  persons,  or  the  presi- 
dent and  directors  of  such  company  or  corporation; 
Provided^   That  the  statutory   lien   which  the  State 


CINCINNATI    SOUTHERN   RAILWAY.  85 

may  have  on  said  road,  thus  sold  -  and  transferred  shall 
not  in  any  way  be  impaired  by  said  sale ;  and,  Provided 
further,  That  no  such  agreement  shall  be  binding  on 
the  stockholders  of  any  such  company  or  corporation, 
unless  a  majority  in  interest  of  such  stockholders,  as 
shown  by  the  books  of  such  company  or  corporation, 
shall  ratify  the  same  in  person  or  by  proxy,  at  a  meeting 
to  be  held  at  the  place  of  holding  the  election  of  directors, 
to  be  called  after  notice  given  of  the  object  of  the  meet- 
ing, in  the  manner  provided  for  notice  of  such  elections. 

Sec.  6.  Be  it  further  enacted,  No  permanent  bridge 
or  othtr  work  shall  be  so  constructed  as  to  materially  in- 
terrupt or  impair  the  navigation  of  such  streams  as  are 
naturally  navigable  or  as  have  been  declared  to  be  sc  by 
law. 

Sec  7.  Be  it  further  enacted,  And  where?  c,  under 
and  by  virtue  of  the  above  mentioned  act  of  the  General 
Assembly  of  the  State  of  Ohio,  the  said  Board  of  Trus- 
tees have  power  to  borrow  a  fund  for  the  construction  of 
the  said  line  of  railway,  not  to  exceed  ten  millions  of  dol- 
lars, and  to  issue  bonds  therefor  in  the  name  of  the  city 
of  Cincinnati,  under  the  corporate  seal  thereof,  bearing 
interest  at  a  rate  not  to  exceed  seven  and  three-tenths 
per  centum  per  annum,  payable  at  such  times  and  places 
and  in  such  sums  as  shall  be  deemed  best  by  said  Board ; 
which  bonds  are  to  be  signed  by  the  President  of  said 
Board,  and  attested  by  the  City  Auditor  of  said  city, 
who  is  to  keep  a  register  of  the  same,  and  are  to  be  se- 
cured by  a  mortgage  on  the  said  line  of  railway,  and  its 
net  income,  and  by  the  pledge  of  the  faith  of  said  city 
and  a  tax  which  it  is  made  the  duty  by  said  act,  of  the 
council  of  taid  city  annually  to  levy,  sufficient  with  said 


36  OIKCIIfirATI   SOnTHKBlf   RilLWAT. 

net  income,  to  pay  the  interest,  «nd  provide  a  sinking 
fund  for  the  final  redemption  of  said  bonds :  Be  it 
Jurlher  enactedy  That  the  respective  holders  of  all  such 
bonds  are  hereby  declared  to  be  entitled  to  hold,  by  way 
of  mortgage,  without  any  conveyance,  the  s  dd  line  of 
railway  and  its  appendages,  and  the  net  income  thereof 
and  all  the  estate,  right,  title,  and  interest  of  the  said 
city  of  Cincinnati,  and  of  the  said  Board  of  Trustees 
therein,  until  the  respective  sums  mentioned  in  said  bonds, 
and  the  interest  theron,  shall  be  fully  paid,  without  any 
preference  one  above  another,  by  reason  of  prioiity  of 
date  of  any  such  bonds,  or  of  the  time  when  such  holder 
became  the  owner  of  the  same,  or  otherwise  howsoever. 

The  mortgage  lien  hereby  given  is  to  vest,  as  soon  as 
rights  of  way  or  lands,  whereon  are  to  be  placed  the 
works  and  conveniences  used  in  constructing,  maintain- 
ing or  operating  said  railway,  are  acquired  or  taken,  by 
virtue  of  the  powers  of  the  said  Tmstees :  Provided^ 
That  nothing  herein  contained  shall  affect  the  lien  of 
any  vendor  upon  the  land  sold  to  said  Trustees. 

Sec.  8.  Be  it  further  enacted,  In  order  to  aid  in  the 
construction  of  said  line  of  railway,  it  shall  be  lawful  for 
any  county  through  which,  or  any  incorporated  town  or 
city  through  or  contiguous  to  which  it  is  proposed  to  run 
the  same,  to  donate  such  sum  or  subscribe  for  such  an 
amount  of  said  bonds  on  such  terms  as  may  be  agreed 
upon  between  said  Trustees  and  the  County  Court  or  cor- 
porate authorities  of  such  town  or  city ;  and  it  shall  be 
the  duty  of  the  County  Court  or  corporate  authorities, 
after  the  said  donation  or  subscription  is  voted  fur  as 
herein  provided,  to  levy  a  tax  upon  the  taxable  property, 
privileges  and  persons  liable  by  law  to  taxation,  within 


CINCINNATI   SOUTHEnN   RAILWAY.  87 

the  county  or  corporation  limits,  sufficient  to  meet  the 
instalhnents  of  the  donation  or  subscription  as  made  and 
the  costs  and  expenses  of  the  collection,  which  tax  shall 
be  levied  and  collected  like  other  taxes. 

Sec.  9.  Be  it  further  enacted,  The  amount  of  such 
donation  or  subscription  shall  not  exceed  five  per  cent,  of 
the  taxable  property  of  such  county,  town,  or  city :  and 
no  tax  shall  be  levied  for  the  same,  unless  a  majority  of 
the  legal  voters  of  the  county,  town  or  city  as  the  case 
may  be,  estimating  the  vote  by  the  last  preceding  Gov- 
ernor's election,  shall  be  in  favor  of  the  said  donation  or 
subscription,  at  an  election  to  be  held  by  the  officers 
authorized  by  law  to  hold  elections,  in  the  usual  way  in 
which  popular  elections  are  held,  after  the  same  shall 
have  been  advertised  at  least  thirty  days  beforehand,  by 
notices  posted  up  at  the  different  places  of  voting,  speci- 
fying the  time  when  it  is  to  be  held,  for  what  road,  the 
amount  and  terms  of  the  proposed  donation  or  subscrip- 
tions, and  when  payable ;  that  publication  of  said  election 
be  made  in  the  newspaper  having  the  largest  circulation 
in  the  county. 

Sec.  10.  Be  it  further  enacted,  Said  Trustees  shall 
survey  and  locate  the  route  of  said  line  of  railway,  and 
actually  commence  the  construction  thereof,  within  two 
years  from  the  passage  of  this  act ;  and  shall  continue 
such  construction,  and  complete  the  work  within  five 
years  therefrom,  or  within  such  further  reasonable  period, 
not  exceeding  ten  years  in  all,  as  the  Governor  may  grant 
upon  satisfactory  evidence  that  they  are  progressing  with 
due  diligence  and  in  good  faith.  The  gauge  of  said  rail- 
way shall  be  five  feet. 

Sec.  11.  Be  it  further  enacted^   The  charge  for 


88  CIXOINNATI    SOUTHERN   RAILWAY. 

transportation  on  said  railway  shall  not  eyceed  thirty-five 
cents  per  hundred  pounds  on  heavy  articles,  and  ten  cents 
per  cubic  foot  on  articles  of  measurement  for  every  hun- 
dred miles,  and  five  cents  a  mile  for  every  passenger. 

Sec  12.  Be  it  further  enacied.  The  taxes  imposed 
on  said  line  of  railway  and  its  appendages  shall  not  ex- 
ceed the  rate  imposed  on  other  railroads  within  this  State. 

Sec.  13.  Be  iijuriher  enacted,  The  said  trustees  may 
sue  and  be  sued,  contract  and  take  and  hold  property,  and 
convey  and  transfer  the  same  by  the  name  of  the  "  Trus- 
tees of  the  Cincinnati  Southern  Railway."  They  shall 
keep  an  office  in  the  city  of  Chattanooga,  and  service  of 
process  may  be  made  on  them  in  the  mode  provided  for 
service  of  process  on  individuals  having  an  office  or 
agency  in  any  county  other  than  that  in  which  the  prin- 
cipal resides;  and  can  sue  and  be  sued  in  any  county 
through  which  the  said  road  may  pass,  and  service  may 
be  had  upon  any  depot  agent  of  the  same.  The  time 
for  commencing  actions  against  them  shall  be  the  same 
as  that  for  commencing  actions  against  railroad  compa- 
nies on  like  cases.  Conveyances  by  said  Trustees  shall 
be  signed  by  not  less  than  three  of  them. 

Sec.  14.  Be  it  further  enacted,  The  following  words 
and  expressions  in  this  act  shall  have  the  several  mean- 
ings hereby  assigned  to  them,  unless  there  be  something 
in  the  context  repugnant  to  such  constmction :  that  is  to 
say,  the  word  *'  lands  "  shall  include  not  only  lands  and 
every  instate  and  interest  therein,  but  also  easements  and 
franchises  connected  therewith.  The  word  "Trustees" 
shall  mean  the  Trustees  for  the  time  being  appointed  un- 
der the  said  act  of  the  General  Assembly  of  the  State  of 
Ohio,  and  shall  include  the  said  Board  of  Trustees  and 


CINCINNATI    SOUTHERN   BAILWAY.  89 

•s 

their  successors.  The  word  "code"  shall  mean  the  code 
of  Tennessee.  The  expression  "  lien  "  of  railway  and  its 
appendages,  shall  extend  to  and  include  the  works  and 
conveniences  of  the  said  railway,  such  as  offices,  stations, 
shops,  sheds,  depots,  car-houses,  and  other  buildings, 
bridges,  viaducts,  tunnels,  arches,  piers,  abutments,  em- 
bankments, approaches,  ways,  aqueducts,  culverts,  sewers, 
drains,  wharves,  yards,  fences,  telegraph  posts  and  wires, 
tracks,  turn-outs,  and  turn  tables,  and  the  rights  of  way 
and  lands  belonging  to  said  Trustees,  whereon  the  said 
and  other  like  works  and  conveniences  used  in  construct- 
ing, maintaining,  or  operating  said  railway  are  placed. 
The  expression  '*Act  of  the  General  Assembly  of  the 
State  of  Ohio,"  shall  mean  the  act  of  the  General  As- 
sembly of  the  State  of  Ohio,  entitled  '*  An  act  relating 
to  cities  of  the  first  class,  having  a  population  exceed- 
ing one  hundred  and  fifty  thousand  inhabitants,"  passed 
on  the  4th  day  of  May,  in  the  year  1869.  The  ex- 
pression "  line  of  railway,"  shall  mean  the  line  of  railway 
between  the  city  of  Cincinnati,  in  the  State  of  Ohio,  and 
the  city  of  Chattanooga,  in  the  State  of  Tennessee. 

Sec  15.  Be  it  further  enacted,  That  nothing  in  this 
act  shall  be  so  construed  as  to  entitle  the  said  railroad  to 
State  {lid  under  the  General  Internal  Improvement  laws 
"  of  this  State. 

Sec.  IC.  Be  it  further  enacted,  That  no  discrimination 
shall  be  made  against  the  citizens  of  the  State  of  Tennessee 
in  the  carrying  of  freight  and  passengers  upon  said  rail- 
road, or  any  part  thereof,  and  the  Legislature  reserves  the 
right  to  enforce  this  provision  by  all  necessary  legislation. 

Seo.  17.  Be  it  further  oiacted,  That  the  State  of 
Tennessee  shall  have  the  same  legislative  control  in  this 


90  oiNcmtrATi  aoirraKRir  railway. 

railroad  interest  or  charter,  that  the  State  holds  in  other 
railroads  in  the  State  of  Tennessee. 

Sec.  18.  Be  it  further  eundedy  That  the  rights, 
privileges,  and  immunities  granted  by  this  act,  shall  con- 
tinue for  and  during  the  period  of  ninety-nine  years,  and 
not  longer,  and  shall  during  that  time,  be  subject  to  be 
declared  forfeited  by  any  court  of  competent  juiisdiction, 
upon  bill  filed  on  the  relation  of  any  citizen  of  Tennes- 
see on  behalf  of  the  State  for  any  failure  on  the  part  of  the 
said  Trustees,  their  successors  or  assigns,  to  comply  with- 
the  terms,  stipulations,  and  obligations  imposed  herein, 
for  the,  benefit  and  security  of  the  State  of  Tennessee,  or 
the  people  thereof;  and  that  a  right  of  action  for  the 
redress  of  any  injury  caused  by,  or  for  any  claim  or  de- 
mand against  said  Trustees  or  railway,  shall  exist  in  this 
State  in  any  court  or  judicial  tribunal  having  jurisdic- 
tion thereof,  against  said  Trustees  or  railway ;  and  process 
may  be  served  upon  any  depot  agent  of  such  Trustees  or 
railway,  residing  in  this  State,  in  the  absence  of  the  Presi- 
dent or  head  officer  of  said  Trustees  or  railway,  and  the 
judgment  rendered  against  the  Trustees  of  said  Cincinnati 
Railway,  or  by  whatever  name  it  transacts  its  business, 
and  the  property,  real  and  personal,  belonging  to  such 
Trustees  or  railway  within  this  State,  shall  be  enforced, 
and  be  liable  for  the  satisfaction  of  said  judgment ;  the 
existence  of  any  mortgage  on  said  railway  and  appenda- 
ges as  provided  for  in  this  act,  to  the  contrary  notwith- 
standing: and  before  entering  on  any  lands  of  this  State, 
said  Trustees  shall  accept  the  provisions  of  this  act 

Sej.  I'J.  Be  it  further  enacted.  That  this  act  shall 
take  efl'ect  from  and  after  its  pasi?age. 

W.  0.  N.  PERKINS, 
Speaker  of  the  Doiue  of  Repretenlativa. 
D.  B.  THOMAS, 
PMsed  Januar/  20,  1870.  Speaker  of  the  Senate. 


CINCINNATI    SODTHBRN   RAILWAY. 


91 


STJi=:prjE:M:EiTT^K.Y  ^ot. 


^J^  ACT  to  grant  further  time  for  commencinff  the  con- 
struction of  'Railroads  and  Street  Reilroads  H'ithin  the 
State  of   Tennessee. 

Section  1.  Be  it  enacted  by  the  General  Asf^emhly 
of  the  State  of  Tennessee,  That  additional  time  of 
three  years,  be,  and  is  hereby  granted  for  the  commence- 
ment of  the  construction  of  railroads  and  street  railroads, 
heretofore  authorized  to  be  constructed  within  the  limits 
of  the  State  of  Tennessee  by  the  Legislature  thereof; 
Provided,  That  nothing  in  this  act  shall  be  so  construed 
as  extending  or  continuing  State  aid  to  any  railroad  or 
street  railroad  company.  This  act  to  take  effect  from 
and  after  its  passage,  the  public  good  requiring  it. 

Passed  December  15,  1870. 

W.  0.  N.  PERKINS, 

Speaker  o/  the  House  of  Repretentative*. 
D.  B.  THOMAS, 
Speaker  oj  th$  Senatt. 
ApproTcd  December  19,  1870. 

D.  W.  C.  SENTER, 

Owernor. 

NoTK. — At  the  time  the  original  act  was  passed  (Jan.  20,  1870,  no 
approval  of  the  Oovernor  was  necessary,  but  the  Constitution  of  Tennes- 
see was  changed  in  the  meantime  in  this  respect. 


KENTUCKY    ACTS 

Authorizing  Construction  of  the  Road. 


[Chapter  272.] 

jiA^ACTfo  autfiorize  the  Trustees  of  the  Cincinnati  South- 
ern Railway  to  acquire  the  right  of  way,  and  to  extend  a 
line  of  railffay  through  certain  counties  in  this  Common- 
tvealth. 


Whereas,  It  is  represented  to  this  General  Assembly 
that  Miles  Greenwood,  Richard  M.  Bishop,  William 
Hooper,  Philip  Heidelbach,  and  Edward  A.  Ferguson, 
of  the  city  of  Cincinnati,  in  the  State  of  Ohio,  were  ap- 
pointed, under  and  by  virtue  of  an  act  of  the  General 
Assembly  of  the  said  State  of  Ohio,  passed  on  the 
fourth  day  of  May,  in  the  year  eighteen  hundred 
and  sixty-nine,  a  Bjard  of  Trast-ees,  with  authority  to 
borrow  a  fund  not  to  exceed  ten  millions  of  dollars,  and 
to  issue  bonds  therefor  in  the  name  of  said  city  of  Cin- 
cinnati, under  the  corporate  seal  thereof,  of  which  said 
fund  the  said  Miles  Greenwood,  Richard  M.  Bishop, 
William  Hooper,  Philip  Heidelbach,  and  Edward  A.  Fer- 
guson, and  their  successors,  are  to  be  Trustees,  with  power 
to  expend  the  same  in  procuring  the  right  to  construct, 
and  in  constructing,  a  single  or  double-track  railway, 
with  all  the  usual  appendages,  including  a  line  of  tele- 
graph, between  the  said  city  of  Cincinnati  and  the  city 
of  Chattanooga,  in  the  Stat«  of  Tennessee,  to  be  called 
and  known  as  the  Cincinnati  Southern  Railway;   and 


CIHCINNATI    SOCTHERN    RAILWAY.  93 

with  power  and  capacity  for  the  purposes  aforesaid  to 
make  contracts,  appoint,  employ,  and  pay  officers  and 
agents,  and  to  acquire,  hold,  and  possess  all  the  necessary 
real  and  personal  property  and  franchises,  either  in  the 
said  State  of  Ohio  or  in  any  other  State  in  which  the  said 
line  of  railway  may  extend,  and  with  other  powers  in  said 
act  expressed :  Provided^  The  Trustees  of  said  road  shall 
cause  to  be  surveyed  one  or  more  routes  for  said  road  by 
a  competent  engineer  and   assistants  from  the  city  of 
Cincinnati,  by  the  way  of  Nicholasville  and  Danville,  to 
the  State  line,  in  the  direction  of  Sparta,  Tennessee; 
thence  on  the  most  direct  practicable  route  to  Chatta- 
nooga, having  due  regard  to  grade  and  cost  of  construc- 
tion.    The  engineers  shall  lay  before  the  board  of  trus- 
tees a  map  of  the  route,  exhibiting  the  excavations,  fills, 
bridges,  grades,  tunnels,  etc.,  with  approximate  estimates 
of  the  cost  of  constructing  the  road  from  Cincinnati  to 
the  State  line,  thence  to  Chattanooga,  which  estimates 
shall  show  separately  the  cost  of  constructing  this  line 
and  others  that  may  be  made  and  reported  by  engineers. 
Each  line  surveyed  shall  be  reported  to  the  citizens  of 
Cincinnati,  that  they  may  express  their  preference  for 
either  route  by  their  votes ;  and  that  the  trustees  shall 
locate  the  road-bed  as  indicated  by  the  votes  of  the  citi- 
zens and  tax  payers  of  said  city  -,  and  whereas,  the  said 
line  of  railway  cannot  be  constructed,  nor  the  powers  of 
the  said  Board  of  Trustees  be  exercised  within  the  Com- 
monwealth of  Kentucky,  without  the  consent  of  the  Gene- 
ral Assembly  thereof     The  General  Assembly  reserves 
the  right  to  change,  alter,  or  modify  this  act,  and  to  regu- 
late, by  general  laws,  the  rates  of  charges  for  the  trans- 


u 


OIKCINVATI   lOOTHERN   HAILWAT. 


portation  of  freights  and   passengers  on  said  railway; 
therefore, 

Be  it  enacted  by  the  General  Assembly  of  the  Com- 
monwealtk  of  Kentucky: 

Section  1.  That  the  said  Board  of  Trustees,  namely : 
Miles  Greenwood,  Richard  M.  Bishop,  William  Hooper, 
Philip  Heidelbach,  and  Eilward  A.  Ferguson,  and  their 
successors,  by  the  name  of  the  Trustees  of  the  Cincinnati 
Southern  Railway,  be,  and  they  are  he^'eby,  authorized  to 
extend,  construct,  and  maintain,  within  the  Commonwealth 
of  Kentucky,  the  said  line  of  railway,  with  a  single  or  dou- 
ble track,  with  all  the  usual  appendages,  including  a  line  of 
telegraph,  and  to  exercise  the  powers  vested  in  them  under 
and  by  virtue  of  said  act  of  the  General  Assembly  of  the 
State  of  Ohio,  subject  to  the  provisions  and  restrictions 
in  this  act  provided. 

Sea  2.  For  the  purpose  of  examining  and  surveying 
routes  for  the  said  line  of  railway,  the  said  Trustees  may, 
subject  to  liability  for  the  actual  damage  done,  enter  upon 
any  land  in  the  counties  of  Josh  Bell,  Knox,  Whitley, 
Laurel,  Clay,  Cwsley,  Jdckson,  Estill,  Madison,  Clark, 
Bourbon,  Harrison,  Pendleton,  Campbell,  Kenton,  Boone, 
Gallatin,  Grant,  Owen,  Scott,  Franklin,  Anderson, 
Woodford,  Fayette,  Jessamine,  Mercer,  Garrard,  Boyle, 
Lincoln,  Rockcastle,  Casey,  Pulaski,  Russell,  Wayne, 
Clinton,  Cumberland,  Monroe,  Metcalfe,  and  Adair,  and  se- 
lect from  the  routes  so  examined  and  surveyed  a  route 
for  the  same,  commencing  at  a  point  to  be  selected  by 
the  said  Trustees  where  the  said  line  of  railway  w'dl  cross 
the  southern  boundary  of  this  Commonwealth,  and  run- 
ning through  either  of  said   counties  to  the  northern 


CINCINNATI   SOUTHERN   RAILWAY.  95 

boundary  line  thereof,  and  across  the  Ohio  river,  so  as  to 
connect  with  the  same  line  of  railway  in  the  State  of 
Ohio.  A  copy  of  the  survey  and  location  of  such  route, 
and  any  alteration  therein,  shall  be  filed  in  the  county 
clerk's  office  of  the  counties  through  which  the  said  rail- 
way runs,  within  one  year  after  such  location  or  al- 
teration. 

Sec.  3.  For  the  purpose  of  constructing  and  main- 
taining said  line  of  railway  and  its  appendages,  the  said 
Trustees  may  acquire,  by  purchase  or  gift,  so  much  land 
as  may  be  necessary  to  construct,  complete,  and  operate 
their  railway  and  its  appendages ;  and  it  shall  be  lawful 
for  them  to  apply  to  any  circuit  or  county  court,  of  any 
county  through  which  it  may  be  proposed  said  railway 
may  pass,  and  for  said  court  to  appoint  a  competent  en- 
gineer, and  two  disinterested  commissioners,  to  examine 
the  proposed  route  of  said  railway,  and  to  take  from  the 
proprietors  of  land  over  which  it  is  to  pass  a  grant  of 
the  right  of  way,  of  such  width  as  may  be  desired,  pro- 
vided the  same  shall  not  exceed  one  hundred  feet,  and 
which  may  include  the  right  to  take  stone,  timber,  earth 
or  gravel  for  the  construction  of  their  road ;  and  they, 
jointly  and  severally,  shall  have  the  power  and  authority 
to  take  and  certify,  under  their  hands  and  seals,  the 
acknowledgment  of  "such  grants  Ja,;^  or  right  of  way, 
and  the  separate  acknowledgment  of  married  livomen, 
that  the  clerks  of  the  several  county  courts  have ;  and 
on  the  presentation  of  the  grant  and  acknowledgment  to 
the  clerk  of  the  county  court  where  the  land  lies,  it  shall 
be  the  duty  of  the  clerk  to  record  the  same  as  other 
deeds ;  and  they  shall  be  efiectual  against  all  persons  ac- 
cording to  their  tenor:      Provided,  That  where  the 


96  CINCINNATI    SOUTRRRN    RAILWAY. 

parties  are  infants  or  absent,  or  refuse  to  make  the  grant, 
they  shall  hear  any  proof  th:it  may  be  adduced,  and  up- 
on their  own  view  proceed  to  value  any  land  required  for 
the  right  of  way,  or  lands  required  for  turn-outs  or  depot 
stations,  or  other  appendages  of  said  road,  and  also  of 
earth,  stone,  gravel,  or  timber  for  the  construction  of  said 
road,  and  report  the  value  they  have  fixed,  together  with 
the  evidence  adduced,  to  the  court  ap[)ointing  them,  with 
a  map  or  profile  of  the  required  ground ;  and  said  report 
shall  be  filed  with  the  clerk  of  such  court,  and  a  sum- 
mons issued  to  the  proprietors  to  show  cause  against  the 
confirmation  of  the  report ;  but  if  the  proprietor  shall  be 
out  of  the  Commonwealth,  the  summons  may  be  executed 
upon  a  known  agent,  if  there  be  one  in  the  county ;  and  if 
there  be  no  known  agent  in  the  county,  then  the  court  may 
order  the  appearance  of  the  party  at  a  named  day,  and 
appoint  the  clerk  to  give  the  proprietor  notice  by  letter  j 
and  in  case  of  there  being  infant,  idiot  or  lunatic  pro- 
prietors, the  court  shall  appoint  guardians  at  litem  f)r 
them,  and  cause  the  guardian  to  appear  and  act  for 
them ;  and  in  case  an  absent  defendant  does  not  appear, 
the  court  shall  appoint  an  attorney  of  the  court  to  act 
for  them.  It  shall  be  lawful  for  the  Trustees  or  any  pro- 
prietor, or  both,  to  traverse  the  report,  and  for  the  court 
to  have  the  traverse  tried  in  open  court  by  a  competent 
jury ;  on  which  trial  the  report  and  evidence  returned  as 
aforesaid  shall  be  heard,  together  with  such  proof  as 
either  party  may  produce.  A  new  trial  to  the  finding 
of  the  jury  may  be  granted  as  in  other  cases.  The  re- 
port shall  stand  for  hearing,  as  to  any  proprietor,  when 
the  process  has  been  executed  ten  days,  or  after  appear- 
ance of  a  proprietor  on  a  day  fixed  for  his  appearance ; 


CINCINNATI    80DTHERN   RAILWAY.  97 

and  the  court  shall  have  jurisdiction  to  confirm  the  re- 
port, if  no  traverse  is  filed ;  and  in  case  a  traverse  is 
filed,  to  have  the  same  tried  by  a  jury,  and  to  give  judg- 
ment upon  the  report  or  finding  of  the  jury,  and  order 
the  payment  of  the  money,  and  the  execution  of  the  grant 
in  accordance  with  the  report ;  and  to  have  the  grant 
executed  by  a  commissioner  appointed  by  the  court,  and 
to  order  them  to  be  recorded  in  the  county  court  clerk's 
office  of  the  couiity ;  and  either  party  may  appeal  from 
the  judgment  of  the  court 

Sec  4.  That  the  commissioners  or  jury,  in  estimating 
the  value  of  the  lands  proposed  to  be  taken,  shall  not  be 
confined  to  the  actual  value,  but  may  take  into  considera- 
tion any  consequential  damage  that  may  result  to  the 
adjoining  proprietors  of  the  land,  and  also  the  advan- 
tages and  disadvantages  the  proposed  road  will  be  to 
such  lands. 

Sec.  5.  That  upon  the  affidavit  of  the  engineer  of  said 
Trustees,  made  and  filed  before  the  county  judge  of  any 
county  through  which  the  proposed  road  may  pass,  that 
at  any  point  more  th.in  one  hundred  feet  is  necessary 
properly  to  construct  and  operate  said  road,  said  Trustees 
may  acquire  the  right  to  so  much  land  as  may  be  neces- 
sary for  that  purpose,  and  in  the  manner  provided  in  the 
preceding  section. 

Sec.  6.  The  said  Trustees  may  also,  for  the  purpose  of 
constructing  and  maintaining  said  line  of  railway,  occupy 
or  use  any  turnpike  or  plank  road,  street  or  other  public 
way  or  ground,  or  any  part  thereof,  upon  such  terms  and 
conditions  as  may  be  agreed  upon  between  said  Trustees 
and  the  municipal  or  other  corporations,  persons,  or  pub- 
lic authorities  owning  or  having  charge  thereof;  and  in 
8 


98  CINCINNATI    SOUTHERN    RAII  WAY. 

case  it  shall  bo  necessary  to  provide  a  new  road,  street, 
or  other  ground,  in  place  of  that  so  used  or  occupied, 
they  in  ly  acquire  the  necessary  land  and  cause  the  neces- 
sary improvement  to  be  m  ide  thereon.  If  no  agreement 
can  be  made  for  the  right  to  use  or  occupy  any  road, 
street,  or  ground  that  may  be  necessary,  the  said  Trus- 
tees may  take  and  appropriate  said  rights  in  the  manner 
provided  in  the  next  session :  Provided^  That,  before 
the  damages  are  a-scssed,  the  court  may  fix  such  terms 
and  conditions  as  may  be  deemed  best  for  the  public  in- 
terest. 

Sec.  7.  The  appropriations  authorized  in  the  preceding 
section  shall  be  made  in  the  manner,  and  subject  to  the 
same  right  of  traverse,  writ  of  error,  and  appeal,  provid- 
ed by  law  for  taking  private  property  for  the  use  of  turn- 
pike and  plank  road  companies,  except  that  the  petition 
shall  be  filed  in  the  circuit  court  of  the  county  in  which 
such  turnpike,  plank  roads,  streets,  or  other  public  ways  or 
grounds,  may  lie;  and  if  a  continuous  portion  of  the 
same,  lying  in  more  than  one  county,  is  sought  to  be  used 
or  occupied,  the  proceedings  may  be  instituted  in  the  cir- 
cuit court  of  any  county  in  which  any  part  of  such  con- 
tinuous portion  may  lie;  and  the  damages  shall  be  as- 
sessed for  the  whole  of  such  portion,  whether  lying  in  the 
county  wherein  the  proceedings  are  instituted  or  in  other 
counties;  the  writ  shall  be  directed  to  the  sheriff  of  the 
county  in  which  the  petition  is  filed. 

Sec.  8.  If,  during  the  construction  or  after  the  comple- 
tion of  said  line  of  railway,  it  shall  be  found  necessary 
by  said  Trustees  to  change  the  location  or  grade,  or  sub- 
stitute other  works  or  conveniences  for  those  original- 
ly designed  or  constructed,  or  to  provide  additional  side- 


CINCINNATI    SOUTHERN   RAILWAY.  99 

tracks  or  other  appendages  for  the  proper  management 
and  operation  of  said  railway,  the  said  Trustees  may 
make  such  changes  and  provide  such  additional  appenda- 
ges, not  departing  from  the  general  route  originally  se- 
lected by  them  ;  and,  for  the  purpose  aforesaid,  may  ac- 
quire or  enter  upon,  take  and  appropriate,  such  lands  or 
rights,  as  may  he  necessary,  in  the  mode  hereinbefore 
prescribed. 

Sec.  9.  Wherever,  along  the  route  selected  by  said 
Trustees,  there  shall  be  a  raih'oad  already  constructed,  or 
rights  of  way  or  depot  or  other  grounds  acquired  there- 
for, which  railroad,  rights  of  way  or  grounds,  can  bo 
adopted  as  part  of  the  said  line,  it  shall  be  lawful  for 
persons,  company,  or  corporations  owning  the  same,  to 
sell  to  the  said  Trustees  the  said  railroad,  rights  of  way 
or  grounds,  or  any  part  thereof,  upon  such  terms  and 
conditions  as  may  be  agreed  upon  between  the  said  Trus- 
tees and  such  persons,  or  the  president  and  directors  of 
such  company  or  corporation :  Provided,  That  no  such 
agreement  shall  be  binding  upon  the  stockholders  of  any^ 
such  company  or  corporation  unless  a  majority  in  inter- 
est of  said  stockholders,  as  shown  by  the  books  of  such- 
company  or  corporation,  shall  ratify  the  same  in  person- 
or  by  proxy,  at  a  meeting  to  be  held  at  the  place  of  hold- 
ing the  election  of  directors,  to  be  called  after  notice 
given  of  the  object  of  the  meeting,  in  the  manner  pro- 
vided for  notice  of  such  elections. 

Sec.  10.  No  permanent  bridge  or  other  work  shall  be 
so  constructed  as  to  materially  interrupt  or  impair  the 
navigation  of  such  streams  as  are  naturally  navigable  or 
as  have  been  declared  to  be  so  by  law. 

Sec.  11.  And  whereas,  under  and  by  virtue  of  the 


100  CINCtMNATI   SODTHERN    RAILWAY. 

above  mentioned  act  of  the  General  Assembly  of  Ohio,  the 
said  Boaid  of  Trustees  have  power  to  boiTow  a  fund  for  the 
construction  of  the  said  line  of  railway,  not  to  exceed  ten 
millions  of  dollars,  and  to  issue  bonds  theref:;r  in  the 
name  of  the  city  of  Cincinnati,  under  the  corporate  seal 
thereof  beaiing  interest  at  a  rate  not  to  exceed  seven  and 
three-tenths  per  centum  per  annum,  payable  at  such  times 
and  places  and  in  such  sums  as  shall  be  deemed  best  by 
said  Board ;  which  bonds  are  to  be  signed  by  the  Presi- 
dent of  said  Board,  and  attested  by  the  City  Auditor  of 
said  city,  who  is  to  keep  a  register  of  the  same,  and  are 
t»  be  secured  by  a  mortgage  on  the  said  line  of  railway 
and  its  net  income,  and  by  pledge  of  the  faith  of  said 
city  and  a  tax  which  it  is  "made  the  duty  by  said  act  of 
the  council  of  said  city  annually  to  levy,  sufficient,  vfith 
said  net  income,  to  pay  the  interest,  and  provide  a  sink- 
ing fund  for  the  final  redemption  of  said  bonds :  Be  it 
furUier  enacted,  That  the  respective  holders  of  all  such 
bonds  are  hereby  declared  to  be  entitled  to  hold,  by  way 
of  mortgage,  without  any  conveyance,  the  said  line  of 
railway  and  its  appendages,  and  the  net  income  thereof, 
and  all  the  estate,  right  and  title,  and  interest  of  the  said 
city  of  Cincinnati,  and  of  the  said  Board  of  Trustees 
therein,  until  the  respective  sums  mentioned  in  said 
bonds,  and  the  interest  thereon,  shall  be  fully  paid,  with- 
out any  preference  one  above  another,  by  reason  of  pri- 
ority of  date  of  any  such  bonds,  or  of  the  time  when 
such  holder  became  the  owner  of  the  same,  or  otherwise 
howsoever.  The  mortgage  lien  hereby  given  is  to  vest, 
as  soon  as  rights  of  way  or  lands,  whereon  are  to  be 
placed  the  works  and  conveniences  used  in  constructing, 
maintaining,  or  operating  said  railway,  are  acquired  or 


f^,    y . /C22-^-^e-^,_ 


CINCINNATI    SOUTHERN   RAILWAY.  101 

taken,  by  virtue  of  the  powers  of  the  said  Trustees: 
Provided,  That  nothing  herein  contained  shall  affect 
the  lien  of  any  vendor  upon  lands  sold  to  said  Trustees, 
nor  to  be  held  to  include  the  rolling  stock  used  in  opera- 
ting said  road:  And  j^^ovided  further,  That  any 
mortgage  that  may  be  made  by  any  lessee  or  lessees  of 
said  line  of  railway,  or  persons  or  company  operating  it, 
on  the  rolling  stock  used  in  operating  said  road,  shall  not 
have  precedence  over,  but  shall  be  at  all  times  inferior  in 
priority  to,  judgments  that  may  be  obtained  against 
them,  in  any  county  through  which  said  road  may  run, 
for  wages,  materia's,  and  supplies  in  running  said  road ; 
for  damages  for  breaches  of  contracts  of  affreightment, 
for  injury,  loss^  or  destruction  of  any  property  put  on  the 
cars  on  said  road  for  transportation,  or  for  any  injury  to 
persons  or  property  occasioned  in  the  running  of  said 
road. 

Sec.  12.  Said  Trustees  shall  survey  and  locate  the 
route  of  said  line  of  radway,  and  actually  commence  the 
construction  thereof,  within  two  years  from  the  passage 
of  this  act ;  and  shall  continue  such  construction  and 
complete  the  work  within  five  years  from  its  commence- 
ment, or  within  such  further  reasonable  pAiod,  not  ex- 
ceeding ten  years  in  all,  as  the  Governor  may  grant  upon 
satisfactory  evidence  tiiat  they  are  progressing  with  due 
diligence  and  in  good  faith.  The  gauge  of  said  railway 
shall  be  five  feet. 

Sec.  13,  The  charge  for  transportation  on  said  railway 
fehall  not  exceed  thirty-five  cents  per  hundred  pounds  on 

heavy  articles,  and cents  per  cubic  foot  on  articles  of 

measurement  for  every  hundred  miles,  and  four  cents  a 
mile  for  every  passenger. 


102  CIMCIHNATI    BOUTHRRiT   RAILWAY. 

Sec.  14.  The  taxes  imposed  on  said  line  of  railway 
and  its  appendages  shall  not  exceed  the  rate  imposed  on 
other  railroads  within  this  State :  Provided,  however ^ 
That  the  trustees  of  the  Cincinnati  Southern  Railway 
Company  shall  pay  into  the  treasury  of  this  Common- 
wealth an  amount  equal  to  fifty  cents  per  capita  for  each 
through  pjissenger  across  the  Commonwealth  of  Ken- 
tucky, and  twenty-five  cents  for  etich  passenger  for  one 
hundred  miles  of  travel  on  said  road  within  the  limits  of 
the  State  of  Kentucky ;  and  the  said  trustees  shall  also 
pay  senjiannuall}',  into  the  treasury  of  this  Common- 
wealth, an  amount  equal  to  one  cent  on  each  one  hundred 
pounds  of  through  freight  shipped  over  said  road ;  and 
all  payments  due  to  the  treasury  under  this  act  shall  be 
made  in  the  manner,  and  at  such  times,  as  may  be  estab- 
lished by  the  Auditor  of  Public  Accounts  of  this  State, 
except  the  payments  required  by  this  act 

Sec.  15.  The  said  trustees  may  sue  and  be  sued,  con- 
tract and  take  and  hold  property,  and  convey  and  trans- 
fer the  same,  by  the  name  of  the  "  Trustees  of  the  Cin- 
cinnati Southern  Railway."  Conveyances  by  said  Trus- 
tees shall  be  signed  by  not   less   than   three  of  them. 

They  sh.iU  keep  an  office  and  an  agent  in  the  city  of 
Covington,  and  an  agent  in  every  county  through  which 
said  railway  runs,  upon  whom  service  of  process  may  be 
made.  Actions  against  them  or  against  the  lessee  or 
lessees  of  said  line  of  railway,  or  persons  or  company  op- 
erating it,  other  than  those  mentioned  in  sections  ninety- 
three  and  ninety-four  of  the  Code  of  Practice  in  Civil 
Cases,  may  be  brought  in  any  county  in  which  any  part  of 
the  said  railway  lies.  When  an  action  is  rightly  brought 
in  any  county,  process  may  be  issued  to  the  county  in  which 


CINCINNATI   SOUTHERN   RAILWAY.  103 

the  officft  of  the  Trustees  is  situate,  and  may  be  sent  and 
returned  by  mail.  And  it  is  hereby  made  a  condition 
upon  which  said  Trustees  construct  and  maintain  said 
railway  within  this  Commonwealth,  that  they  thereby 
waive  the  right  to  remove  any  case  from  any  of  the 
courts  of  this  State  to  any  of  the  courts  of  the  United 
States,  or  to  bring  a  suit  in  any  of  the  courts  of  the 
United  States  against  any  citizen  of  this  State ;  and  a 
violation  of  this  condition  shall  operate  as  a  forfeiture  of 
the  rights,  privileges,  and  immunities  granted  in  this  act 
Sec  16.  The  persons  or  company  operating  said  rail- 
way, or  any  part  thereof,  as  lessee  or  otherwise,  shall  re- 
ceive and  carry  all  pissengers  and  freight  coming  or 
brtught  to  it  or  them  to  be  carried,  and  they  shall  make 
no  discrimination  against  citizens  of  Kentucky  in  carry- 
ing freight  or  passengers  on  said  line  of  railway,  or  any 
pari  thereof;  nor  shall  they  make  any  unjust  discrimination 
in  favor  of  through  freights  or  passengers  against  any  way 
freights  or  passengers,  or  against  freights  or  passeng*  rs 
from  other  railroads  conn'^'cting  with  said  railway  iti  this 
State;  but  they  shall  charge  and  receive  only  the  same,  and 
no  more,  for  the  same  services  in  transportijig  freight  or 
passengers  going  to  or  coming  from  one  coiuiecting  road, 
that  they  charge  or  receive  upon  those  goini:;  to  or  com- 
ing from  any  other.  They  shall  keep  an  oflice  and  agent 
at  some  point  along  the  line  within  this  Commonwealth, 
and  an  agent  in  every  county  therein  through  which 
said  railway  luns,  upon  whom  ser.ice  of  process  may  be 
made;  and  it  is  hereby  made  a  condition  upon  which 
such  persons  or  company  may  lease  t-aid  railway,  or  any 
part  thereof,  or  make  any  arrangement  fur  operating  the 
same,  that  such  persons  or  comp.iny  thereby  waive  the 


1A4  CfHCIXMATl    SOITTHKRX   RAILWAY. 

right  to  remove  any  case  from  any  of  the  courts  of  this 
State  to  any  of  the  courts  ol"  the  United  States,  or  to 
bring  a  suit  in  any  (if  the  courts  of  tlie  United  States 
against  any  citizen  of  tliis  Stitte ;  and  a  violation  of  such 
condition  shall  operate  as  a  forfeiture  of  all  rights  ac- 
quired under  such  lease  or  arrangement ;  which  forfeiture, 
and  the  other  provisions  of  this  section,  this  Common- 
wealth reserves  the  rigl.t  to  enforce  by  all  necessjiry 
remedies  and  additional  legislation. 

Sec.  17.  That  the  rights,  privileges,  and  immunities 
granted  by  this  act,  bhall  continue  for  and  during  the 
period  of  ninety-nine  years,  and  not  longer,  and  shall,  du- 
ring that  time,  be  subject  to  be  declared  forfeited  by  any 
court  of  competent  jurisdiction,  by  an  action  instituted 
by  the  direction  of  the  General  Assembly  in  the  name  of 
the  Commonwealth,  for  any  failure  on  the  part  of  the 
said  Trustees,  their  successors  or  assigns,  to  comply 
with  the  terms,  stipulations,  and  obligations  imposed 
herein  for  the  benefit  and  security  of  this  Commonwealth 
or  the  people  thereof;  and  before  entering  on  any  lands 
in  this  State,  said  Trustees  shall  accept  the  provisions  of 
this  act. 

Sec.  18.  The  following  words  and  expressions  in  this 
act  shall  have  the  several  meanings  hereby  assigned  to 
them,  unless  there  be  something  in  the  context  repugnant 
to  such  construction :  that  is  to  say,  the  word  "  lands" 
shall  include  not  only  lands  and  every  estate  therein,  but 
also  easements  and  franchises  connected  therewith.  The 
word  "Trustees"  shall  mean  the  Trustees  for  the  time 
being  appointed  under  the  said  act  of  the  General  Assem- 
bly of  the  State  of  Ohio,  and  shall  include  the  said  Board 
of  Trustees  and  their  successors.    The  cxpress^ion  "line 


CINCINNATI    SOUTHERN    RAILWAY.  105 

of  railway  and  its  appendages"  shall  extend  to  and  in- 
clude the  works  and  conveniences  of  the  said  railway, 
such  as  offices,  stations,  shops,  sheds,  depots,  oar-houses, 
and  other  buildings,  bridges,  viaducts,  tunnels,  arches, 
piers,  abutments,  embankments,  approaches,  ways,  aque- 
ducts, culverts,  sewers,  drains,  wharves,  yards,  fences, 
telegraph  posts  and  wires,  tracks,  turn-outs,  and  turn- 
tables, and  the  rights  of  way  and  land.s  belonging  to  said 
Trustees,  whereon  the  said  and  other  like  works  and  con- 
veniences used  in  constructing,  maintaining,  or  operating 
said  railway  are  placed.  The  expression*  "Act  of  the 
General  Assembly  of  the  State  of  Ohio,"  shall  mean  the 
act  of  the  General  Assembly  of  the  State  of  Ohio,  en- 
titled *'  An  act  relating  to  cities  of  the  first  class,  having 
a  population  exceeding  one  hundred  and  fifty  thousand 
inhabitants,"  passed  on  the  4th  day  of  May,  in  the  year 
1869.  The  expression  "line  of  railw.iy,"  shall  mean  the 
line  of  railway  between  the  city  of  Cincinnati,  in  the 
State  of  Ohio,  and  the  city  of  Chattanooga,  in  the  State 
of  Tenne-see. 

Sec.  19.  The  General  Assembly  reserffes  the  right  to 
alter,  amend,  or  repeal  this  act,  as  provided  in  an  act 
entitled  "An  act  reserving  power  to  amend  or  repeal 
charters  and  other  laws,  approved  Febiuary  14,  1850. 

Sec.  20.  Be  it  further  enacted,  That  this  act  shall 
take  effect  from  and  after  its  passage. 

JAMES  B.  McCREARY, 
Speaker  of  the  Iloute  of  liepresentalives. 

JOHN  G.  CARLISLE, 

Speaker  of  the  Senat; 
Approved  February  13,  18T2. 

P.  II.  LESLIE,  Governor. 


106  CINCINNATI    lOUTHKaM    RAILWAY. 


[Chapter  74 4] 

ji^  A  C  2'  to  atncinl  an  act  eti  titled  "An  Art  to  authorize  tfie 
2'rustees  o/  t/te  Cincinnati  .Sont/tern  'Itniltvay  to  arrjitire 
the  ri(/ht  of  n>aj'  and  to  'extend  a  line  of  railfyay  tti rough 
certain  counties  in  this  Commonwealth,"  approred  J'et/rU' 
ary  thirteenth,  one  thousand  eight  hundred  and  Merenty- 
two. 

He  it  enacted  hij  the  General  Assembly  of  the  Com- 
monwealth of  Kentucky: 

StcnoN.  1.  That  so  much  of  the  proviso  to  section 
fourteen  of  an  act  approved  February  thirteenth,  one 
thousand  eight  hundred  and  seventy-two,  entitled  "An 
Act  to  authorize  the  Trustees  of  the  Cincinnati  Southern 
Railway  to  acquire  the  right  of  way  and  to  extend  a 
line  of  railway  through  certain  counties  in  this  Common- 
wealth," as  requires  the  Trustees  of  the  Cincinnati  South- 
ern Railway  to  pay  an  amount  equal  to  fifty  cents  per 
capita  for  each  through  passenger,  and  twenty-five  cents 
for  each  passenger  for  one  hundred  miles,  and  so  much 
of  the  proviso  to  the  preamble  to  said  act  as  requires  the 
said  Trustees  to  report  the  lines  surveyed,  to  the  citizens 
of  Cincinnati,  and  to  locate  the  road  bed  as  indicated  by 
the  votes  of  the  citizens  and  tax  payers  of  said  city,  be 
and  the  same  are  hereby  repealed. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from 

and  after  its  pas.<age. 

JAMES  B.  Mccreary, 

Speake'^  of  the  Jlotue  of  Rfprttenlatittt. 
WILLIAM  JOHNSON,  ;>ro  tern. 
Speaker  of  the  Senate. 
Approyed  26th  March,  1872. 
P.  U.  LESLIE,  Governor. 


CINCINNATI    SOUTHERN    RAILWAY.  107 

^JV  ACT  fo  amend  an  act  eyi  fitted  "An  Act  to  an///orfze 
the  2ritstecs  of  ttie  Cincinnati  Sontfiern  Tiailh'ay  to  ac- 
quire t/ie  right  of  jcay  and  to  extend  a  line  of  liailway 
through  certain  counties  of  this  Commonwealth." 

Be  it  enacted  hy  the  General  Assemhlr/  of  the  Com- 

monwealth  of  Kentucky: 

Section  1.  That  so  much  of  the  proviso  to  section 
fourteen  of  an  act  approved  February  thirteenth,  eigh- 
teen hundred  and  seventy-two,  entitled  "  An  Act  to  author- 
ize the  Trustees  of  the  Cincinnati  Southern  Railway  to 
acquire  the  right  of  way  and  to  extend  a  line  of  railway 
through  certain  coanties  in  this  Commonwealth,"  as  re- 
quires the  said  Trustees  to  pay  semi-annually  into  the 
Treasury  of  this  Commonwealth  an  amount  equal  to  one 
per  cent,  on  each  one  hundred  pounds  of  through  freight 
shipped  over  said  road,  be  and  the  same  is  hereby  repealed. 

Sec.  2.  This  act  shall  be  in  force  from  and  after  its 
passage. 

JAMES  B.  McCREARY, 

Speaker  of  (he  House  of  Representatives. 

G.  A.  C.  110 LT,  pro  tern, 

Speaker  0/  the  Senati, 
Approved  4th  February,  1873. 
P.  H.  LESLIE!,   Oovernor. 


Ohio   RivcT  Bridge  Act. 

PASSKD    AT    THE    TUIRD    8KSSION    OK    TiiE     FURTY-SECOND    CONGBESfl. 


AJ\/'A  CT  to  authorize  the  constrtiction  of  bridt/es  nrrors  the 
Ohio  rh'er,  and  to  prescribe  the  dimevsious  o/  the  same. 

Be  it  enacted  hy  the  Se^mte  avd  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Con- 
gress assembled,  That  any  persons  or  corporations,  hav- 
ing lawful  authority  therefor,  may  hereafter  erect  bridges 
across  the  Ohio  river,  lor  railroad  or  other  uses,  upon  com- 
pliance with  the  provisions  and  requirements  of  this  act. 

Sec.  2.  That  every  bridge  hereafter  erected  across  the 
Ohio  river,  above  the  mouth  of  the  Big  Sandy,  shall  have 
at  least  one  span  of  a  height  of  not  less  than  ninety  feet 
above  low  water,  and  of  not  less  than  forty  feet  above 
local  highest  water,  mensured  to  the  bottom  chord  of  the 
bri'lge;  that  every  bridge  hereafter  erected  across  the 
Ohio  river,  below  the  mouth  of  the  Big  Sandy,  shall  have 
at  least  one  span  of  a  height  of  not  less  than  one  hund- 
red feet  above  low  water,  and  of  not  less  than  forty  feet 
above  highest  water,  measured  to  the  bottom  chord  of  the 
bridge ;  that  this  high  span  shall  give  a  clear  opening  of 
at  least  four  hundred  feet  between  the  piers,  measured  at 
right  angles  to  the  current  at  every  stage,  and  that  it 
shall  be  placed  over  the  main  channel  of  the  liver  used 
by  boats  during  ordinary  stages  of  water :  Provided, 
however,  That  any  one  company,  lawfully  authorized  by 
the  States  of  West  Virginia  and  Ohio,  is  hereby  author- 
ized to  construct  a  bridge  across  the  Ohio  river,  from  the 
city  of  Wheeling,  in  the  State  of  West  Virginia,  to  the 
opposite  side  of  said  river  within  the  State  of  Ohio,  with 


CINCINNATI    SOUTHERN    RAILWAY.  109 

a  span  over  the  main  channel  of  not  less  than  three  hund- 
red and  fifty  feet  in  length,  and  in  all  other  respects  con- 
formable and  subject  to  the  provisions  of  this  act,  so  far 
as  the  same  are  applicable  to  bridges  about  the  mouth  of 
the  Big  Sandy:  And  provided,  That  in  case  this 
high  span  is  not  over  the  low- water  channel,  suitable  ar- 
rangements be  made  elsewhere  to  permit  the  passage  of 
single  boats  under  the  bridge  at  low  water ;  that  all 
bridges  over  the  Ohio  river,  below  the  Covington  and 
Cincinnati  suspension  bridge,  shall  have,  in  addition  to 
the  high  span  prescribed  above,  a  pivot-draw,  giving  two 
clear  openings  of  one  hundred  and  sixty  feet  each,  mea- 
sured at  right  angles  to  the  current  at  the  average  stage 
of  water  in  the  river,  and  located  in  a  part  of  the  bridge 
that  can  be  safely  and  conveniently  reached  at  that  stage ; 
and  that  said  draw  shall  be  opened  promptly,  upon  rea- 
sonable signal,  for  the  passage  of  boats  whose  construc- 
tion shall  not  be  such  as  to  admit  of  their  passage  under 
the  stationary  spans  of  said  bridge,  except  when  trains 
are  passing  over  the  same ;  but  in  no  case  shall  unneces- 
sary delay  occur  in  opening  the  said  draw  before  or  after 
the  passage  of  trains. 

Sec.  3.  That  the  piers  of  the  high  span  and  the  piers 
of  the  draw  shall  be  built  parallel  with  the  current  at  that 
stage  of  the  river  which  is  most  important  for  naviga- 
tion; and  that  no  rip-raps  or  other,  outside  protection  for 
imperfect  foundation  will  be  permitted  in  the  channel-way 
of  the  high  span,  or  of  the  draw  openings. 

Sec.  4.  That  any  person,  company,  or  corporation 
authorized  to  construct  a  bridge  across  the  Ohio  river 
shall  give  notice,  by  publication  for  one  week  in  newspa- 
pers having  a  wide  circulation,  in  not  less  than  two  news- 
papers in  the  cities  of  Pittsburg,  Cincinnati,  and  Louis- 


110  CINCINNATI    SOUTHERN    RilLWAT. 

viUe,  for  bridges,  above  the  nioulh  of  the  Big  Sandy,  and 
in  the  cities  of  Pittsburg,  Cincinnati,  Louisville,  Sjiint 
Louis,  Memphis,  and  New  Orleans,  for  bridges  below  the 
mouth  of  the  Big  Sandy,  and  shall  eubmit  to  the  Secre- 
tary of  War,  for  his  examination,  a  design  and  drawings 
of  the  bridge  and  piers,  and  a  map  of  the  location, 
giving,  for  the  space  of  at  least  one  mile  above  and 
one  mile  below  the  proposed  location,  the  topography 
of  the  banks  of  the  river,  the  shore-lines  at  high  and 
low  water,  the  direction  of  the  current  at  all  stages, 
and  the  soundings  accurately  showing  the  bed  of 
the  stream,  the  location  of  any  other  bridge  or  bridges, 
and  shall  furnish  such  other  information  as  may  be  re- 
quired for  a  full  and  satisfactory  understanding  of  the 
subject  by  the  Secretary  of  War ;  and  if  the  Secretary 
of  War  is  satisfied  that  the  provisions  of  the  law  have 
bc^n  complied  with  in  regard  to  location,  the  building  of 
the  piers  may  be  at  once  commenced ;  but  if  it  shall  ap- 
pear that  the  conditions  prescribed  by  this  act  can  not 
be  complied  with  .'.t  the  location  where  it  is  desired  to 
construct  the  bridge,  the  Secretary  of  War  shall,  after 
considering  any  remonstrances  filed  against  the  building 
of  said  bridge,  and  furnishing  copies  of  such  remon- 
strances to  the  board  of  engineers,  provided  for  in  this 
act,  detail  a  board  composed  of  three  experienced  officers 
of  the  corps  of  engineers,  to  examine  the  case,  and  may, 
on  their  recommendation,  authorize  such  modifications  in 
the  requirements  of  this  act,  as  to  location  and  piers,  as 
will  permit  the  constmction  of  the  bridge;  not,  however, 
diminishing  the  width  of  the  spans  contemplated  by  this 
act :  Provided,  That  the  free  navigation  of  the  river 
be  not  materially  injured  thereby. 

Sec.  5.  That  all  parties  owning,  occupying,  or  opera- 


CINCINNATI    SOUTHERN    RAILWAY.  Ill 

ting  bridges  over  the  Ohio  liver  shall  maintain,  at  their 
own  expense,  from  sunset  to  sunrise  throughout  the  year, 
such  lights  on  their  bridges  as  may  be  required  by  the 
Light-House  board  for  the  security  of  navigation ;  and 
all  persons  owning,  occupying,  or  operating  any  bridge 
over  the  Ohio  river  shall,  in  any  event,  maintain  all  hghts 
on  their  bridge  that  may  be  necessary  for  the  security  of 
navigation. 

Sej.  6.  That  any  bridge  constructed  under  this  act, 
and  according  to  its  limitations,  shall  be  a  lawful  struc- 
ture, and  shall  be  recognized  and  known  as  a  post-route, 
upon  which,  also,  no  higher  charge  shall  be  made  for  the 
transmission  over  the  same  of  mails,  the  troops,  and  the 
munitions  of  war  of  the  United  States  than  the  rate  per 
mile  paid  for  the  transportation  over  the  railroads  or  pub- 
lic highways  leading  to  said  bridge  j  and  the  United 
States  fchall  have  the  right  of  way  for  postal-telegraph 
purposes  across  any  such  bridge;  and  in  case  of  any 
litigation  arising  from  any  obstruction  or  alleged  obstruc- 
tion to  the  navigation  of  said  river,  created  by  the  con- 
struction of  any  bridge  under  this  act,  the  cause  or  ques- 
tion arising  may  be  tried  before  the  district  court  of  the 
United  States  of  any  State  in  which  any  portion  of  said 
obstruction  or  bridge  touches. 

Sec  7.  That  the  right  to  alter  or  amend  this  act,  so 
as  to  prevent  or  remove  all  material  obstructions  to  the 
navigation  of  said  river  by  the  future  construction  of 
bridges,  is  hereby  expressly  reserved,  without  any  liabili- 
ty of  the  government  for  damages  on  account  of  the 
alteration  or  amendment  of  this  act,  or  on  account  of  the 
prevention  or  requiring  the  removal  of  any  such  obstruc- 
tions ;  and  if  any  change  be  made  in  the  plan  of  con- 
struction of  any  bridge  constructed  under  this  act,  during 


112  CIMOIKKATI    SODTHEIIM    RAILWAY. 

the  progress  of  the  work  thereon  or  before  the  comple- 
tion of  sucli  bridge,  sucli  change  shall  be  subject  to  the 
approval  of  the  Secretjiry  of  War ;  and  any  change  in 
the  construction,  or  any  alteration  of  any  such  bridge 
that  may  be  directed  at  any  time  by  Congress,  shall  be 
made  at  the  cost  and  expense  of  the  owners  thereof. 

Sec.  8.  That  joint  resolution  number  ten,  approved 
April  seventh,  eighteen  hundred  and  sixty  nine,  author- 
izing the  construction  of  a  bridge  over  the  Ohio  river  at 
Paducah,  be,  and  the  same  hereby  is,  repealed. 

Sec.  9.  That  the  provisions  of  an  act  entitled  "An  act 
to  provide  for  the  better  security  of  life  on  vessels  pro- 
pelled in  whole  or  in  part  by  st«am,"  &c.,  approved  Feb- 
ruary twenty-eighth,  eighteen  hundred  and  seventy-one, 
so  far  as  they  relate  to  the  limitation  of  steam  pressure 
of  steamboats  used  exclusively  for  towing  and  carrying 
freight  on  the  Mississi[)pi  river  and  its  tributaries,  are 
hereby  so  far  modified  as  to  substitute  for  such  boats  one 
hundred  and  fifty  pounds  of  steam  pressure  in  place  of 
one  hundred  and  ten  pounds,  as  provided  in  said  act  for 
the  standard  pressure  upon  standard  boilei-s  of  forty  two 
inches  diameter,  and  of  plates  of  one-quarter  of  an  inch 
in  thickness ;  and  such  boats  may,  on  the  written  permit 
of  the  supervising  inspector  of  the  district  in  which  such 
boats  shall  carry  on  their  business  for  a  period  of  twelve 
months  from  and  after  the  passage  of  this  act,  be  permitted 
to  carry  steam  above  the  standard  pressure  of  one  hundred 
and  ten  pounds,  but  not  exceeding  the  standard  pressure 
of  one  hundred  and  fifty  pounds  to  the  square  inch. 

J.  G.  BLAINE, 
Speaker  <j/"  the  Iloiue  of  Kepre$entative$. 
SCHUYLER  COLFAX, 
Vice  President  of  the  United  State*  and  President  o/  the  Senate. 
Approved  December  17,  Ibli. 
D.  8.  GRANT. 


A  SHORT  SKETCH 


,Q^'  f  HBf 


Hittjitnifi    $$ti||ff|| 


RAILWAY, 


PROM  THE 


haUanooga  City  Bireotory,  181f8-i. 


OHATTANOCXiA  : 
riMhUS  BOOK  AND  JOB  Op'JuMtH':. 

1S7X.  .  -I.  I    .  . 


CINCINNATI  SOUTHERN  RAILWAY 


Our  llmiied  space  prevents  adequate  mention  of  this  great  enterprUe,  which  hnn 
already  both  dlrwtly  and  lndlre<^tly  done  somuch  for  our  city,  and  the  oxpectetl 
early  completion  of  which  promises  us  such  Important  results. 

It  Is  dlflflcult  to  overoNliniHte  elthor  its  Iniportjuico  to  Cincinnati,  ('hHttnii(M»^u 
and  the  country  In  Kenunil  as  aRrent  public  thoroiiirlifaro,  or  th«'  stupcnduoun  na 
tureof  the  obstturles,  which  the  energy  and  eiKerprisiug  liberality  of  the  tjuei-n  City 
of  the  West  have  In  its  prosecution  overcome. 

Of  the  former  some  idea  can  be  obtainetl  from  a  mere  glance  of  the  map.  Toa|>- 
preclate  the  latter  it  is  necessary  to  actually  go  over  the  ground. 

The  scheme  of  a  Southern  railroad  to  connect  Cincinnati  with  Tennessee  and  the 
South  generally,  has  been  a  favorite  one  with  the  people  of  that  city,  for  about  forty 
years  past,  but  a  combination  of  causes  Including  the  great  natural  diltlculties  and 
the  outbreak  of  war  long  deferred  Us  execution. 

The  city  In  its  corporate  capacity  finally  took  hol<l  of  the  work,  and  the  city  or 
Cincinnati  has  built  and  itself  owns  the  road.  The  measure  first  tCK)k  dyflnlte  legjil 
shape  by  tlie  passage  in  IStiH  of  a  law  popularly  known  a«  the  "Ferguson  Act,"  from 
its  author,  the  Hon.  K.  A.  Ferguson,  one  of  the  leading  lawyers  of  Ohio,  to  whose 
skill,  energy  and  devotion  to  this  great  enterprise.  Its  Inception  and  successful  pros- 
ecution, are  in  a  lar:re  measure  owing. 

Under  the  provisions  of  this  act  Chattanooga  was  by  the  City  Councji  of  lincin- 
natl  dcsignattHl  as  the  Southern  terminus,  and  an  Issue  of  ten  million  dollars  in 
bonds  of  Cincinnati  was  authorized  by  vote  of  the  people.  Subsequently  an  a<ldl- 
tional  issue  of  six  millions  wa«  nuide  after  another  vote,  and  the  early  Issue  of  two 
millions  additional  is  anticipated  which  wlll^ifflce  to  complete  the  work  sutfl- 
ciently  to  run  trains  through  from  Cincinnati  to  Chattanooga. 

The  work  hjuj  been  conducted  under  a  Hoard  of  five  Trustees  ap|K)inte<l  by  the 
Superior  Court  of  Cincinnati .  The  Board  at  present  consists  of  Miles  Greenwood, 
President,  E.  A.  Ferguson,  U.  M.  liishop  (now  Governor  of  Ohio),  Henry  Mack  and 
A.  H.  Kughcr,  ail  well  known  and  representative  citizens  of  Cincinnati,  the  first 
nametl  threaliavingbeen  in  the  Bo»ird  slnc«  its  first  organization. 

The  railway.  Is  three  hundred  and  thirty-six  miles  in  length.  It  has  four  large 
bridges;  crossing  the  Ohio,  the  Kentucay,  the  Cumberland  and  Tennessee  rivers. 
The  Northern  portion  runs  through  the  Blue  Grass  region  of  Kentucky,  and  the 
Southern  through  the  valley  of  the  Tennessee. 

The  Intermediate  portion  crosses  the  Cumberland  mountain  or  table  land  region. 
Some  idea  of  the  engineering  difficulties  may  be  gathered  from  the  statement  that 
there  are  throughout  a  distance  of  about  1.t7  miles,  from  two  miles  north  of  the  Ken- 
tucky river  to  the  northern  end  of  Itoane  county  where  the  road  drops  into  the  Ten- 
nesse  valley,  twenty-seven  tunnels  with  an  aggregate  length  of  fourand  ninety-nine 
hundrtHlths  miles,  the  largest  being  the  King's  Mountain  tunnel,  through  King's 
Mountain,  Kentucky,  about  three-fourths  of  a  mile  in  length,  and  that  on  no  con- 
tinuous hundreil  miles  in  any  railway  in  the  United  States;  not  even  the  Pacific 
road,  do  the  natural  dilHcHiltlcs  cause  such  expensive  work  asoii  the  hundretl  miles 
southward  from  .Somerset,  Kentucky.  Yet  throughout  the  whole  length  of  this 
mighty  work  there  Is  not  a  single  reverse  curve,  nowhere  a  grade  above  si.xty  feet 
to  the  mile,  and  on  a  large  portion  of  the  road  the  maximum  grade  is  forty  feet. 
The  workmanship  Is  of  aquality  rarely  equaled  In  any  road  In  the  world,  and  the 
close  and  competent  supervision  exerciseil  during  its  progrutis  has  l>een  such  as  Is 


s 

seldom  seen.  The  masonry  Ik  of  superior  and  pernvanent  character,  and  except  a 
few  wooden  structures  over  small  streams,  the  numerous  bridges  thus  far  are  all  of 
Iron,  and  what  Is  rare  oven  In  good  roads  have  all  been  thoronshly  Inspected  by 
the  Railway,  first  at  the  shops  of  the  manufacturers,  and  afterwards  in  the  course 
of  erection.  Of  the  four  lartrest  bridges  all  are  completed  except  the  one  over  the 
Tennessee  river,  eight  njlles  by  water  or  six  by  land  above  our  city,  and  that  Is  sub- 
stantially flnlslH!d  and  will  doubtless  be  complete  about  the  time  our  book  Is  In  the 
hands  ^f  its  reader-i.  This  bridge  hasfrom  Its  earllesf  Inception  been  under  the  Su- 
pervision of  our  esteemed  fellow  citizen  Samuel  Whlner>  ,  F^sq.  Division  Kuglneer 
of  Division  I.  of  the  Cincinnati  Southern  Railway,  whose  reputation  in  this  com- 
nvunlty  for  skill  and  efficiency  in  ids  profession  Is  a  sufflcient  guarantee  of  a  high 
degree  ofsalety  and  excellence  In  the  structure. 

The  bridge  is  eighteen  hundred  and  four  (ISOi)  feel  long,  and  the  track  sixty-four 
(61)  feet  above  low  water  nuirk. 

The  masonry  Is  from  superior  limestone  taken  from  quarries  on  the  Tennessee  riv- 
er. This  stone  by  actual  scientific  test  shows  a  strength  superior  to  that  of  an.y 
limestone  yet  tested  in  thclTnlted  States. 

The  bridge  on  the  Kentuck.v  river  is  the  highest  pier  bridge  In  the  world,  having 
au  altitude  of  two  hundred  aud  seventy-five  feet  above  the  surface  of  the  water.  The 
railway  is  complete*!  and  running  reguhirly  from  Cincinnati  to  Somerset,  Ken- 
tucky, a  distance  of  one  hurulred  and  flfty-seven  and  one-half  mile*,  being  about 
halfway  from  Cincinnati  to  Chattanooga.  It  Is  operated  between  Cincinnati  and 
Somerset  by  the  Cincinnati  Soutliern  Railway  Company,  generally  called  the  Com- 
mon CJarriers"  Company. organized  under  what  is  ^  nown  as  the  "Common  Carriers' 
I^»w"  of  Ohio. 

The  company  Is  composed  nearly  altogether  of  citizens  of  Cincinnati.  Their  lease 
Is  a  temporary  one  which  the  Trnste^s  have  a  right  to  terminate  on  giving  no- 
tice, and  Is  only  designed  to  nuike  the  completed  portion  of  use  until  arrangenients 
are  ma<ie  for  running  the  whole  road.  The  reports  of  the  Common  Carriers'  Com- 
pany, which  liave  trom  time  to  time  appeared  in  the  press,  make  a  most  gratifying 
showing  for  the  future  of  the  railway.  Although  running  oiily  a  fragmentary  road 
and  having  a  rival  line  as  far  as  liirxington,  they  have,  even  in  the  recent  times  of 
financial  deiiression,  been  able  to  realize  profits  for  theniselves  and  pay  over  hand- 
some sums  as  the  city's  share  of  the  earnings.  This  success  encourages  the  people 
of  Cincinnati  to  hope  for  such  a  return  when  the  whole  road  Is  completed,  as  will 
materially  lessen  the  l)urden  of  taxation  by  the  direct  receipts  from  the  earn- 
ings of  the  nvll  way,  though  they  expect  the  returns  for  their  outlay  principally  in 
the  great. Increase  which  it  will  give  to  the  trade  and  manufactures  of  the  city. 

South  of  Somerset  the  track  Is  laid  for  a  distance  of  three  and  a  half  (3i/^)  miles  to 
Pitman's  Creek,  and  the  bridge  over  Pitman's  Creek  is  finished.  South  of  Pitman's 
Creek  the  track  Is  not  laid,  but  the  grading  and  masonry,  including  tunnels,  bridge 
piers,  etc.,  arc  complete  to  within  about  four  miles  of  Chattanooga,  and  the  super- 
structure of  the  Cumberland  and  Tennessee  river  bridges  done,  except  a  few  days' 
work  on  the  latter.  So  that  substantially  all  that  remains  to  be  done  to  complete 
the  road  through  is  to  build  the  four  miles  next  to  Chattanooga  and  to  provide  Iron 
trestUng  and  the  superstructure  of  the  smaller  bridges  from  Pitman's  Creek  .south- 
ward, and  to  lay  down  the  cross  ties  and  rails.  Depot  facilities,  and  shops  are  also  to 
be  provided.  Throughout  a  considerable  portion  of  the  road  the  cross  ties  are  already 
plied  up  ready  for  use,  aud  the  Trustees  have  on  liand  a  considerable  quantity  of 
iron  ami  steel  rails  ready  to  be  laid  down. 

As  we  go  to  press,  (April,  1«78)  the  news  readies  us  of  the  passage,  In  theOhlo  Leg- 
islature, of  the  .\ct  providing  for  the  issue  of  the  additional  two  millions,  subject 
to  a  vote  of  the  people  of  Cincinnati.  The  vote  of  the  people  will  speed  I  l.v  follow 
and  will  probably  order  the  issue  of  the  bonds.  Sh(Juld  It  even  be  adverse,  howev- 
er, there  will  be  no  question  of  the  completion  of  the  railway,  as  there  Is  authority 
for  leasing  the  railway  to  jiarties  who  will  complete  it,  and  the  people  of  Cincin- 
nati, though  not  agreeing  in  all  iiartlculars  of  how  It  should  be  done,  are  thorough- 
ly awakened  to  the  Importance  and  necessity  of  completing  the  now  almost  fin- 
ished work,  and  reaping  the  rich  rewards  they  have  such  good  reason  to  anticipate 


■niMrkml  thm  tf  «h(« 


4 

lX«  compteUoniB  taUy  »muitvhL  mii<I  Uit*  wttrk  whao  vrKw  mmudwI  may  be  •xp««(* 

tHl  t.   '  '     ■  '  ....  .,,,  .,.      ...    .  .  ..      ,.....,.  ^....   .  .  snlnt«il  hy 

Ill 

blj(t>wH>  111  ci>m|jii.-iiuti. 
Tt«  tii)p"rl!«M<-c  ('jkii   liiirUI>'    bv  «x«gKcrat«<l. 

!>iillt  in  tliii<\  we  •hould  itdt  !i 

;  certainly'  would  bav  ■  U«>ii' 
III  nil' •iiiH'i'i'iu  imrlH  oi'our  cuuulry,    Tli^  ' ,' 
nillwiiyH,  f{l%lnj;  hiT  ilirt'cl  anil  ikIvhui 
K(,Kt  ..i,.|  u-..^!      u..  ).MV.-    iliviiUy  iMjutn...^ 
I'l  •  .1.    Alubiunu  *  I 

niKi    -  '  '.  t  rutlriutUit.    Tht;< 

greut  niii\y°H>'  iivl-wurk  toriucd  by  tbc»«  ruail»HuU  thuir  cutiufutmiiK.  pud*  (  iiiciii> 
natl  In  (ilroff  r-<>m  iniin  leal  ion  witli  tbe  whole  Mouth,  Nouihca^t  and  K(iulhvr*>»»t, 
With  th' 
4UKar  :ii 

SO 
Itsi.,.-. 


^iiitlcpurtui,  IhuUuir,  Texan,  th«^  Lower  MiM<iK»lii|il,  tJu- cotton, 

'>n8,  the  West  JndiiHt,  Houlh  America,— iu  short,  with  that  wliole 

.  Ill  spuedy  and   direct  ouuiiuuuloatluii   with   wlitcli   hur  ptMiple  have 

iidwlttch   liuK  (xre vented  l>er  growth   from   pnxii'bdinK  even  lM>yond 

land  proportiouN. 

The  t>eiictU*<  to  ourclty,  niulcing  us  tlie  ueatcr  and  tbeuit  ofthosi  len  nt 

coniiuerec  and  travel^  tlu:  lialf-way  linuKe,  an  it  were,  b«tw(^n   the  i  'tthe 

cotton  fields,  the  lakeftand  the  gulf,  we  need  not  dwell  apon,  for  our  latisenH  (ti)ty 
realbee  them. 

Wltb  our  railway  Eij'iit^in,  our  wonderftil  manufiteturlng  fi<<-tlitieA,  <iur  noil  and 
climate  and  the  proverbial  energy  of  our  people.  It  nee<lN  no  proplui  to  say  tltai  the 
completion  of  the  CincinnatJ  Bouthcru  lUtilway  glvek  to  our  loved  city  nn  atiiding 
asRurance  of  It  ^reataud  pro»perouH  future. 


V\'',1-    ..' 


"^v^''7;v''^''■-■■',■■  ■''" 


i 


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